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/Vt:,'.'  YjrfC  (State)      Ci^.,t^ 
OFFICIAL  EDITION 


THE 

MISCELLANEOUS  REPORTS  ^^ 


OASES  DECIDED 


IN  THE 


COURTS  OF  RECORD 


OP  THE 


STATE  OF  NEW  YORK 

OTHBB  THAN  THB 

Conrt  of  ippoals  and  the  Appellate  Diilslon  of  the  Supreme  Conrt 


WILLIAM  V.  R.  ERVING,  Reporter 


/ 


/ 


VOLUME  CXIV. 
1921 


J.  B.  LYON  COMPAinr,  PUBLISHERS 
ALBANY,  N.  Y. 


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Entered  according  to  act  of  Congress  in  the  year  one  thousand  nine  hundred 
and  twenty-one, 

Bt  JOHN  J.  LYONS,  Secrktart  of  thb  ^tatb  of  New  York, 

In  trust  for  Uie  People  of  the  said  State  in  the  office  of  the   Librarian  of  Congress 
at  Washington,  D.  C. 


SEP  15  m: 


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Justices  of  the  Supreme  Court 


FIRST  JUDICIAL  DISTRICT. 


Hon.  NATHAN  BUUR.(6) 

■  WILLIAM  P.  BURR. 

"    JOHN  PROCTOR  CLARKE.(l) 
"     DANIEL  F.  COHALAN. 

-  VERNON  M.  DAVIS. 

■  FRANCIS  B.  DELEHANTY. 

■  THOMAS  F.  DONNELLY. 

-  VICTOR  J.  DOWUNa,(5) 

•  MITCHELL  L.  ERLANQER. 

■  EDWARD  R.  FINCH. 

•  JOHN  FORD, 

«    EDWARD  J.  QAVEQAN, 
«    LEONARD  A.  QIEQERICH. 
"    SAMUEL  OREENBAUM,(5) 

•  CHARLES  L.  GUY, 

•  PETER  A.  HENDRICK. 

Hon.  EDWARD 


Hod.  henry  D.  H0TCHKIS3. 

«  IRVING  LEHMAN.(6) 

■  RICHARD  P.  LYDON. 

•  JOHN  V.  McAVOY. 

-  PHILIP  J.  McCOOK.(6) 

•  EDWARD  J.  McGOLDRICK.(lO) 

-  FRANCIS  MARTIN. 

•  RICHARD  H.  MITCHELL. 
'  GEORGE  V.  MULLAN.(6) 

■  JOSEPH  E.  NEWBURQER. 

■  JAMES  O'MALLEY, 

«  ALFRED  R.  PAGE.(5) 

•  M.  WARLEY  PLATZEK. 

■  JOHN  M.  TIERNEY. 

•  ROBERT  F.  WAaNER.((D 
'  ISIDOR  WAS6ERVOGEU 

O.  WHITAKER. 


SECOND  JUDICIAL  DISTRICT. 


Hon.  JOSEPH  ASPINALL. 

"  RUSSELL  BENEDICT. 

"  ABEL  E.  BLACKMAR.(2) 

-  STEPHEN  CALLAQHAN. 

-  JAMES  C.  CROPSEY.CT) 
«  NORMAN  S.  DIKE. 

«  LEANDER  B.  FABER, 

■  LEWIS  L.  FAWCETT. 

•  FRANK  S.  GANNON, 

-  WALTER  H.  JAYC0X.(5) 


Hod.  ISAAC  M.  KAPPER, 

'  CHARLES  H.  KELBY.(7) 

-  WILLIAM  J.  KELLY,(6) 

■  EDWARD  LAZANSKY. 

■  JOHN  McCRATE, 

■  DAVID  F.  MANNING.CT) 

"  HARRINGTON  PUTNAM,(5) 

•  ARNON  L.  SQUIERS, 

«  SELAH  B.  STRONG, 

«  JAMES  C.  VAN  SICLBN. 


THIRD  JUDICIAL  DISTRICT. 

Hon.  A.  V.  S.  00CHRANE,(5)  Hon.  WESLEY  O.  HOWARD, 

-  GILBERT  D.  B.  HASBROUCK.  '    CHARLES  E.  NICHOLS. 

-  HAROLD  J.  HINMAN,  -    JOSEPH  R0SCH.(8) 

Hon.  WILLIAM  P.  RUDD. 


FOURTH  JUDICIAL  DISTRICT. 


Hon.  HENRY  V.  BORST. 
«    HENRY  T.  KELLOGG.(5) 
"    JOHN  M.  KELLOGQ.O) 


Hon.  JAMES  McPHILLIPS. 
-     CHARLES  C.  VAN  KIRK. 
■     EDWARD  C.  WHITMYER. 


FIFTH  JUDICIAL  DISTRICT. 


Hon.  CLAUDE  B.  ALVERSON. 

■  WILLIAM  S.  ANDREWS,* 

■  FREDERICK  M.  CALDER, 
•    JEROME  L.  CHENEY. 


Hon.  LEONARD  C.  CROUCH, 
•     IRVING  R.  DBVENDORF, 
■     IRVING  G.  HUBBS.(5) 
«    EDGAR  S.  K.  MERRELL.(5) 
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SIXTH  JUDICIAL  DISTRICT. 

Hod.  ROWLAND  L.  DAVIS.(5)  Hon.  GEORGE  McCANN. 

-  ABRAHAM  L.  KELLOGG.  •     WALTER  LLOYD  SMITH.(6> 

-  MICHAEL  H.  KILEY.(5)  «     THEODORE  R  TUTHILL. 

SEVENTH  JUDICIAL  DISTRICT. 

Hon.  WILLIAM  W.  CLARK,  (5)  Hon.  ADOLPH  J.  RODENBECK, 

-  BENJAMIN  B.  CUNNINGHAM,  «     SAMUEL  N.  SAWYER. 

■  ADELBERT  P.  R1CH.(5)  •    JOHN  B.  M.  STEPHENS, 

Hon.  ROBERT  F.  THOMPSON. 

EIGHTH  JUDICIAL  DISTRICT. 

Hon.  CHARLES  H.  BROWN,  Hon.  LOUIS  W.  MARCUS, 

•  GEORGE  W.  COLE.  *     GEORGE  E.  PIERCE. 

•  WESLEY  C.  DUDLEY,  "     CHARLES  A.  POOLEY, 

■  ALONZO  G.  HINKLEY.  *     CHARLES  B.  SEARS. 
«     FREDERICK  W.  KRUSB.(4)  "     HARRY  L  TAYLOR. 

•  JOHN  S.  LAMBERT,  (5)  "     CHARLES  B.  WHEELER, 

■  FRANK  C.  LAUGHLIN,(5)  ■    JOHN  WOODWARD. (5) 

NINTH  JUDICIAL  DISTRICT. 

Hon.  MARTIN  J.  KEOGH,  Hon.  WILLIAM  P.  PLATT, 

-  ISAAC  N.  MILLS, (5)  -     ALBERT  H.  F.  SEEGER, 

■  JOSEPH  MORSCHAUSER.  -     ARTHUR  S.  TOMPKINS. 

Hon.  J.  ADDISON  YOUNG. 

JUDGES  OF  THE  COURT  OF  CLAIMS. 

Hon.  FRED  M.  ACKERSON.  P.  J..  Hon.  CHARLES  MORSCHAUSER, 

"     WILLIAM  D.  CUNNINGHAM,  *     SANFORD  W.  SMITH, 

Hon.  WILLIAM  W.  WEBB. 

JUSTICES  OF  THE  CITY  COURT  OP  THE  CITY  OP  NEW  YORK. 

Hon.  EDWARD  F.  O'DWYER.  Ch.  J..  Hon.  ABRAHAM  G.  MEYER, 

■  JOSEPH  M.  CALLAHAN.  -    THOMAS  T.  REILLY. 

■  ALEXANDER  FINELITE,  *     PETER  SCHMUCK, 

-  EDWARD  B.  LA  FETRA.  "     LOUIS  A.  VALENTE. 
«    GUSTAVE  HARTMAN,  -    JOHN  L.  WALSH, 

Hon.  LOUIS  WENDEL,  Jr. 

JUDGES  OF  THE  COURT  OP   GENERAL    SESSIONS   OF  THE 
PEACE  OF  THE  CITY  OF  NEW  YORK. 

Hon.  THOMAS  C.  T.  GRAIN.  Hon.  JOSEPH  F.  MULQUEEN, 

•  JOHN  F.  McINTYRE,  «     CHARLES  C.  NOTT.  Jr.. 
«     MORRIS  KOEXIG.O)                              "    OTTO  A.  ROSALSKY, 

lion.  ALFRED  J.  TALLEY.dO^ 

•  DoeiqrjHtp'l  bv  the  Governor  under  section  7  of  article  VI  of  the  Constitution  as   an 
Associiito  Judge  of  the  Court  of  Appeals. 

1  Designated  by  the  Governor  a«  Presiding  Justice  of  the   Appellate  Division.  First 
Department. 

2  Designated  by  the  Governor  as  Presiding  Justice  of  the  Appellate   Division,   Second 
Department. 

3  Designated  by  the  Governor  as  Presiding  Justice  of  the  Appellate  Division.   Third 
Department. 

4  Designated  by  the  Governor  as  Presiding  Justice  of  the  Appellate  Division.  Fourth 
Department. 

5  Designated  by  tlie  Governor  as  a  Justice  of  the  Appellate  Division. 

6  Designated  by  the  Appellate  Division.  First  Department,  as   one  of  the  Justices    of 
the  Appeilat3  Term,  First  I>epartmont. 

7  Deaignnted  by  the  Appellate  Division,  Second  Department,  as  one  of  the  Justices  of 
the  Appellate  Term.  Second  Department. 

8  Appointed  hv  the  Governor  Jan.  12,  1921,  to  succeed  Emory  A.  Chase,  elcstod  to 
Court  of  Appeals. 

9  Appointed  Feb.  7,  1921.  in  plaee  of  William  H.  Wadhams,  resigned. 
10  Appointed  Dec.  28,  1920,  in  place  of  James  T.  Malone.  deceased. 

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County  Judges 


Brooklyn Kinga  county. 


Hon.  GEORGE  ADDINGTON Albany Albany  oounty. 

ELBA  REYNOLDS  ♦ Bsimont Allegany  couaty. 

LOUIS  D.  GIBBS Bronx Bronx  oouniy. 

BENJAMIN  BAKER* Binghamton Broome  county. 

GEORGE  A.  LARKLN Olean Cattaraugus  county. 

EDGAR  S.  MOSilER Auburn Cayuga  oounty. 

ARTHUR  B.  OTTAWA Y Westfield Chaautuqua  county. 

CHARLES  B.  SWARTWOOD  ♦ Elmira Chemug  county. 

JAMES  P.   HILL* ,   Norwich Chenango   county. 

JOHN  K.  COLLINS Platteburg Clinton  county. 

JOHN  L,  CRANDELI Philmont Columbia  county. 

GEORGE  M.  CHAMPLIN* Cortland Cortland  county. 

ANDREW  J.  McNAUGHT* SUmford Delaware  county. 

CHARLES  W.  H.  ARNOLD Poughkeepsie .  . .   Dutchess  county. 

THOMAS  H.  NOONAN Buffalo Erie  county. 

BERNE  A.  PYRKE  ♦ Port  Henry Easez  county. 

FREDERICK  G.  PADDOCK  ♦ Malone Franklin  county. 

WILLIAM  S.  CASSEDY  t Gloversville Fulton  county. 

NEWALL  K.  CONE  ♦ Batavia Genesee  county. 

JOSIAH  C.  TALLMADGE  ♦ Catakill Greene  oounty. 

TIMOTHY  D.  SULLIVAN  ♦ Long  Lake Hamilton  oounty. 

CHARLES  BELL  ♦ Herkimer Herkimer  county. 

JOHN  CONBOY Watertown Jefferson  oounty. 

WILLIAM  R.  BAYKS 

J.  GRATTAN  M acM AHON 

GEORGE  W.  MARTIN 

MITCHELL  MAY. 

BEUBEN  L.  HASKELL. 

MILTON  CARTER* LowviU« LwHa  county. 

LOCK  WOOD  R.  DOTY  • Genesco Livingston  county. 

JOSEPH  D.  SENN  * Oneida Madison  oounty. 

WILLIS  K.  GILLETTE Rochester Monroe  county. 

CHARLES  E.  HARDIES Amsterdam Montgomery  county. 

LEWIS  J.  SMITH Hompstoad Nassau  county. 

CHARLES  HICKEY* Lockport Niagara  oounty. 

FREDERICK  H.  HAZARD Utica Oneida  county. 

WILLIAM  L.  BARNUM Syracuse Onondaga  county. 

HORACE  W.  FITCH Canadaigua Ontario  county. 

RUSSELL  WIGGINS Middletown Orange  county. 

GERALD  B.  FLUHRER* Albion Orleans  county. 

HENRY  D.  COVILLE Oswego Oswego  county. 

ULYSSES  GRANT   WELCH Edmeston Otsego  county. 

J.  BENNETT  SOUTHARD  • Cold  Spring Putnam  county. 

BURT  JAY  HUMPHREY Jamaica Queens  county. 

PIERCE  H.  RUSSELL Troy Rensselaer  county. 

J.  HARRY  TIERNAN* Stapleton Richmond  county. 

MORTIMER  B.  PATTERSON  * Nyaok Rockland  county. 

JOHN  C.  CRAPSER Maasena. St.  Lawrence  county. 

LAWRENCE  B.  McKELVEY Saratoga  Springs  Saratoga  county. 

JOHN  J.  McMULLEN Schenectady Schenectady  county. 

DOW  BEEKMAN  ♦ Mlddleburg Schoharie  county. 

GEORGE  M.  VELIE  * Watkins Schuyler  county. 

GEORGE  F.   BODINE  • Waterloo Seneca  countj'. 

WARREN  J.  CHENEY Coming Steuben  county. 

GEORGE  H.  FURMAN Patchogue Suffolk  county. 

GEORGE  H.   SMITH  * Monticello Sullivan  county. 

GEORGE  F.  ANDREWS  * Owego Tioga  county. 

WILLARD  M.  KENT  • Ithaca Tompkins  county. 

JOSEPH  M.  FOWLER Kingston Ulster  countv. 

GEORGE  S.  RALEY  * Glens  Falls Warren  county. 

KRSKINE  C.  ROGERS Hudson  Falls.. . .  Washm^ton  county. 

CLYDE  W.  KNAPP* Lyons Wayno  county. 

FRANK  L.  YOUNG O.isininK Westchester  county. 

JAMES  E.  NORTON  ♦ Warsaw Wvomin?  county. 

GILBERT  H.  BAKER  • Penn  Yan Yatea  county. 


*  Also  Surrogate. 

t  Appointed  by  the  Governor  in  place  of  Frank  Talbot,  deceased. 


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special  County  Judges 

Hon.  a.  EARLE  TREAT Auburn Cayuga  county. 

FRANK  S.  WHEELER Jamestown Chautauqua  county. 

JOHN  H.  HICKS Norwich Chenango  county. 

HAROLD  F.   PORTER Carthage Jefferson  county. 

FREDERICK  L.  DUTCHER Rochester Monroe  county. 

PARKER  F.  SCRIPTURE Rome Oneida  county. 

HARRY  B.  FULLERTON Port  Jervie Orange  county. 

QEORQE  M.  FANNING Fulton Oswego  county. 

CHARLES  M.  HALE Canton St.  Lawrence  county. 

WILLIAM  G.  BIRMINGHAM Liberty SuUivan  county. 

FRANK  A.  BELL. Warerly Tioga  county. 

8.  EDWIN   BANKS Ithaca Tompkini  rountv. 

ELIOT  D.  NORTON Cambridge Washington  county. 


Surrogates 


Hon.  WILLIAM  A.   GLENN Elsmere Albwiy  county. 

GEOltGE  M.  S.  SCHULZ Bronx Bronx  county. 

ALBERT  A.  BIRD Cattaraugus.  . . .  Cattaraugus  county. 

WALTER  E.  WOODIN Auburn C«yuga  county. 

HARLEY  N.  CROSBY Falconer Chautauqua  county. 

VICTOR  F.  BOIRE Plattsburg Clinton  county. 

JOHN  V.  WHITBECK.  Jn Hudson Columbia  county. 

DANIEL  J .  GLEASON Poughkeepsie. . .  Dutcheai  county. 

LOUIS  B.  HART Buffalo Erie  oountv. 

T.  CUTHELL  CALDERWOOD Johnstown Fulton  county. 

JOSEPH  ATWELL Watertown Jefferson  connty. 

GEORGE  A.  WING  ATE Brooklyn Kings  county. 

SELDEN  S.  BROWN Scottsville Monroe  countv. 

FOX  8PONABLE Nelliston Montgomer\  county. 

LEONE  D.  HOWELL Min'ola Nassau  county. 

JOHN  P.  COHALAN New  York  . . . .  \  ^^^  v«rlr  ^,.,m»., 

JAMES  A.  FOLEY New  York /  ^^^  York  county. 

E.  WILLARD  JONES Holland  Patent.   Oneida  county. 

JOHN  W.  SADLER Syracuse Onondaga  county. 

HARRY  I.  DUNTON Canandaigua OnUrio  countv. 

ELWOOD  C.  S.MITH Monroe Orange  county. 

CLAYTON  I.  MILLER Pula-ski Oswego  county. 

SHIRLEY  L.  HUNTINGTON Oneona Otaejco  oountv. 

DANIEL  NOBLE Jamaica Queens  county. 

CHESTER  G.   WAGER. Troy Rensselaer  countv. 

ALRIC  R.  HERRIMAN Ogdensburg St.  I.*wrencQ  county. 

WILLIAM  S.  OSTRANDER Saratoga  Springs.  Saratoga  co«intv. 

ALEXANDER  M.  VEDDER Schenectady Schenectadr  county. 

EDWIN  C.  S.MITH Addison Steuben  county. 

ROBERT  S.  PELLETREAU Patchogue Suffolk  countv. 

GEORGE.  F.  KAUF.MAX Saugerties Ulster  county. 

FREDERICK  FRASER Salem Washington  county. 

GEORGE  A.  SLATER, Port  Chester Westchester  county. 


Special  Surrogates 


Hon.  RALPH   HARTER Moravia Cayuga  county. 

ROBERT  J.  COOPER Dunkirk . , Cliautauqua  county. 

JOHN  H.  HICKS Norwich Chenango  county. 

JASPER  W.  CORNAIRE Cape  Vincent. . .  Jefferson  county. 

JOHN  C  EVANS Rome Oneida  county. 

CHARLES  E.  TAYLOR Middletown Orange  county. 

DAVID  P.  MOREHOUSE,  Jr Oswego Oswego  county. 

JOHN  M.  BARR Ogdensburg St.  Lawrence  county. 

WILLIAM  SEARS Whitehall Washington  county. 

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CASES  REPORTED  IN  THIS  SERIES  WHICH  HAVE   BEEN 
AFFIRMED  OR  REVERSED. 


TOL.     PAGl. 

Alternian  v.  Home  Insurance  Co 112      445 

Reversed :  195  App.  Div.  151. 

Bulova  V.  Barnett,  Inc 114        94 

Reversed :  194  App.  Oiv.  418. 
Burgess  Bros.  Co.,  Inc.  v.  Stewart 112      347 

Affirmed:  194  App.  Div.  1313. 
Clough  V.  Gardiner Ill      244 

Affirmed:  194  App.  Div.  923. 

Cockeroft  v.  Mitchell 101      211 

Affirmed:  187  App.  Div.  189;  230  N.  Y.  G30. 

Cooper-Snell  Co.  v.  State  of  New  York 109        96 

Affirmed :    230  N.  Y.  249. 

Coyne  v.  Town  of  Greenburgh 110      698 

Reversed:  194  App.  Div.  861. 

Dunbar  v.  Sweeney 99      373 

Modified:     230  N.  Y.  609. 

Eagan  v.  City  of  Buffalo 105      506 

Affirmed  (sub  nom.  Egan  v.  City  of  Buffalo) :  188  App. 
Div.  953;  230  N.  Y.  575. 

First  Construction  Co.  v.  State  of  New  York 110      164 

Affirmed:  194  App.  Div.  608. 
Gambrill  Mfg.  Co.  v.  American  Foreign  Banking  Corp.  113      448 
Reversed:   194   App.   Div.   425. 

Outtag  V.  Shatzkin 113       362 

Affirmed:    230  N.  Y.  647. 

Hausner  v.  Wickham 105      735 

Affirmed :  186  App.  Div.  931 ;  230  N.  Y.  578. 

Heckseher  Building  Corp.  v.  Melton 113      184 

Affirmed:  194  App.  Div.  957. 

Hydraulic  Power  Co.  v.  Pettibone  Cataract  Paper  Co..   112      528 

Affirmed :  194  App.  Div.  819. 
Kinneary  v.   Parrett 110      594 

Affirmed:  194  App.  Div.  911. 


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viii      CASES  AFFIRMED  OE  REVERSED. 

VOL.     PAOl. 

Levett  V.   Draper 108      621 

Affirmed:  194  App.  Div.  632. 
Lezin«ky  Co.,  Inc.,  v.  Iloirman Ill       415 

Affirmed:  194  App.  Div.  95 i. 
Matter  of  Barthelmess  v.  Cukor 112       204 

Affirmed:  194  App.  Div.  359. 
Matter  of  Beckett 112        45 

Affirmed:  194  App.  Div.  901. 

Matter  of  Caldwell 107      31G 

^iffirmed:  195  App.  Div.  890. 
Matter  of  City  of  New  York  (Ely  Ave.) 88       320 

Reversed :  194  App.  Div.  914. 
Matter  of  Dollar 103       137 

Affirmed:  194  App.  Div.  948. 

Matter  of  Early 112        54 

Affirmed:     195  App.  Div.  889. 

Matter  of  Emerson  v.  Buck 112  1 

Reversed:    230  N.  Y.  380. 

Matter  of  Frost 107      118 

Reversed   (sub  nom.   Matter  of  Kingsbury) :   192  App. 
Div.  206;  230  N.  Y.  680. 

Matter   of  Lake 112      681 

Affirmed:  194  App.  Div.  967. 

Matter  of  McDowell 102       275 

Modified:  193  App.  Div.  914;  230  N.  Y.  601. 

Matter  of  Scheibel 108       551 

Reversed:     192  App.   Div.  438;    (sub   nom.   Matter   of 
Scheibel  v.  O'Brien)  :  230  N.  Y.  277. 

Matter   of   Usatorres 112      437 

Affirmed:  194  App.  Div.  961. 

Matter  of  Werlich 107       207 

xVffirmed:    230  N.  Y.  510. 

Mills  V.   Friedman Ill       253 

Affirmed:  194  App.  Div.  012. 

Mills  v.  McXamee Ill       253 

Affirmed:    194  App.   Div.  932. 

Morrell  v.  Brooklyn  Borough  Gas  Co.  No.  1 113         65 

Affirmed:  195  App.  Div.  1. 

Orton  V.  Tannenbaum 110       128 

Reversed :  194  App.  Div.  214. 


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CASES  AFFIRMED  OR  REVERSED.'       ix 

VOL.    PAOE. 

Palmer-Marcy  Lumber  Co.  v.  Osband 108      313 

Affirmed  (sub  nom.  Palmer-Marcy  Co.,  Inc.  v.  Gordon) : 
194  App.  Div.  951. 

People  V.  Willi 109        79 

Affirmed:  194  App.  Div.  946. 
People  ex  rel.  Brixton  Operating  Corp.  v.  La  Fetra...  113      527 

Affirmed:    194  App.  Div.  523. 
People  ex  rel.  Brooklyn  City  R.  R.  Co.  v.  Pub.  Serv. 

Comm 110      509 

Affirmed    (sub   nom.  People   ex  rel.  Brooklj^n  City  R. 
R.  Co.  V.  Nixon) :  193  App.  Div.  746;  230  N.  Y.  614. 

People  ex  rel.  Cassidy  v.  Lawes 112      257 

Affirmed:  193  App.  Div.  931;  230  N.  Y.  553. 

People  ex  rel.  Cotton  v.  Leo 110      619 

Modified  and  affirmed:  194  App.  Div.  921. 

People  ex  rel.  Durham  Realty  Corp.  v.  La  Fetra 113      536 

Affirmed:  195  App.  Div.  280;  230  N.  Y.  429. 

People  ex  rel.  Facey  v.  Leo 110      616 

Affirmed :  193  App.  Div.  910 ;  230  N.  Y.  602. 

People  ex  rel.  H.  D.  H.  Realty  Corp.  v.  Murphy 113      253 

Reversed:  194  App.  Div.  530;  230  N.  Y.  654. 

People  ex  rel.  176  West  87  St  Corp.  v.  Cantor 107  6 

Affirmed:  191  App.  Div.  946.    Modified  and  affirmed: 
230  N.  Y.  312. 

People  ex  rel.  Post  &  McCord,  Inc.  v.  Cantor 108      632 

Affirmed  on  opinion  below:     194  App.  Div.  9G1. 
People  ex  rel.  Sabatino  v.  Jennings 108        93 

Affirmed :  194  App.  Div.  950. 
Rosenwasser  v.  Rosenwasser 110        38 

Affirmed:  194  App.  Div.  916. 

Rothbarth   v.    Herzfeld 100       470 

Affirmed :  194  App.  Div.  962. 

Sherman  v.  Richmond  Hose  Co.  No.  2 101         62 

Modified  and  affirmed:  186  App.  Div.  417;  230  N.  Y.  462. 

Shilman    v.    Shilman 105       4()1 

Affirmed:  188  App.  Div.  908;  230  N.  Y.  554. 

Spitzer  v.  Born,  Incorporated Ill       595 

Reversed :  194  App.  Div.  739. 


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X         CASES  AFFIRMED  OR  REVERSED. 

yOL.    PAOB. 

Staff  V.  Bemis  Realty  Corp Ill      635 

Affirmed:  194  App.  Div.  635. 
Stem  &  Co.  V.  Avedon  &  Co.,  Inc Ill      372 

Reversed:  194  App.  Div.  433. 
United   States  Mortgage  &  Trust   Co.   v.   Liberty  Na- 
tional Bank   112      149 

Affirmed:    195  App.  Div.  890. 
Wilmes  v.  Fournier  Ill  9 

Affirmed:  194  App.  Div.  950. 


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TABLE 


OF 


CASES    REPORTED. 


^*  PAGE. 

Adams  v.  Dodge 565 

American  Fruit  Distributing 
Co.,  Berman,  Inc.,  v 345 

American  Institute  for  Sci- 
entific Research,  Greaves  v.  413 

American  Union  Line,  Inc., 
Potter  V 101 

Astoria  Light,  H.  &  P.  Co., 
People  ex  rel.,  v.  Cantor.  419 

B. 

Bacon  Coal  Co.,  Block  v...  54 
Bamett,  Inc.,  Bulova  v. . . .     94 

Barrett,  Rittenberg  v 167 

Beau  Site  Co.,  Waters  v...  65 
Beekman,  Gerard,  Matter  of.     73 

Behrman,  Kussold  v 682 

Berman,  Inc.,  v.  American 

Fruit  Distributing  Co 345 

Bernstein,  17  &  19  East  95th 

St.,  Inc.,  V 513 

Best  V.  State  of  New  York.  272 

Beth  Israel,  Matter  of 582 

Betz,  People  ex  rel.  Buffalo 

Consistory  v 124 

Block  V.  Bacon  Coal  Co 54 

Boate  V.  Boate 321 

Bodine,  Owen  v 142 

Boenig,  Dodd  v 144 

Brown,  Blank  Realty  Co.  v.  357 

Bryant  Co.,  People  v 133 

Buckley  v.  Sharpe .206 

Buffalo   Consistory,  People 

ez  rel.  v.  Betz 124 


PAOV. 

Bulova  V.  Bamett,  Inc....  94 
Burgess  Bros.  Co.,  Inc.,  v. 

Stewart   673 

Bumham,  Matilda  E.,  Mat- 
ter of  455 

Butler  V.  Sherwood 483 

Byrne  v.  McDonough 529 

c. 

Cauda,  Louisa  S.,  Matter  of.  161 
Cantor,  People  ex  rel.  As- 
toria Light,  H.  &  P.  Co.  V.  419 

Carroll  v.  Harris 392 

Cash,  Mary  B.,  Matter  of. .  641 
Central    Union    Trust    Co., 

Matter  of 214 

Central    Union    Trust    Co., 

Mehlhop  V 464 

Chemung  Iron  &  Steel  Co. 

V.  Horn 380 

Childs  Co.,  Inc.,  v.  Reardon, 

Inc 178 

City  of  Jamestown,  Postal 

Telegraph  Cable  Co.  v. . .  689 
Clarke    v.    Eighth    Avenue 

Railroad. Co 707 

Cleary,  Riccobono  v 174 

Cocomitros,  Jones  v 447 

Cohoes  Power  &  Light  Corp., 

Eavanaugh  v 590 

Coletti,  MoUoy  v 177 

Cooley    V.    State    of    New 

York 717 


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Xll 


TABLE  OF  CASES  REPORTED. 


PAGE. 

Craig,  People  ex  rel.  Mullen 
Cont.  Co.,  Inc.,  v 216 

Cutler,  Lillian  Yongen,  Mat- 
ter of  203 

D. 
Dale    Engineering    Co.    v. 

State  of  New  York 233 

Danziger,    400    Manhattan 

Avenue  Corp.  v 79 

Demme,  Revillon  v 1 

De    Orvananos,   Hennenlot- 

ter  V 333 

Dermont,  May  v. 106 

Dietrich  v.  Palisades  Inter- 
state Park  Comm 425,  429 

Dodd  V.  Boenig 144 

Dodge,  Adams  v 565 

Duff,  Michael,  Matter  of . . .  309 

E. 

Eclipse  Light  Co.,  Harris  v.  399 
Eighth     Avenue     Railroad 

Co.,  Clarke  v 707 

Einhorn,  Harris  v 387 

Einstein,  Henry  L.,  Matter 

of   452 

Equitable    Life    Assurance 

Society,  Isaacs  v 468 

Eygabroad,  Kahrs  v 395 

F. 

Falk  V.  Thurlow 686 

Fitzsimmons,  Annie,  Matter 

of   71 

Flach,  Michaels  v 225 

Fletcher  v.  Manhattan  Life 

Ins.  Co 409 

Fox,  John,  Matter  of 368 

Fredenburg,  David,  Matter 

of 299 


Gr.  PAOB. 

Gaffken,      Arthur      Henry, 

Matter  of 693 

Garra,  International  Cheese 

Co.  V 543 

Gilchrist,    People    ex    rel. 

Hultman  v 651 

Giordano,  People  v 62 

Gitzelter  v.  Grossman 557 

Goodwin,  Nat  C,  Matter  of.     39 
Greaves  v.  American  Insti- 
tute   for    Scientific    Re- 
search    413 

Grey,  Jackson  v 92 

Grossman,  Gitzelter  v 557 

Guaranty  Trust  Co.  v.  Meer.  327 
Guida  V.  Pontrelli 181 

H. 

Haas,  Northmann  v 384 

H.  &  K.  Costume  Co.,  Inc., 
V.  Maison  Bernard  Im- 
porting Co.,  Inc 553 

Harris,  Carroll  v 392 

Harris  v.  Eclipse  Light  Co.  399 

Harris  v.  Einhorn 387 

Heinemann  v.  State  of  New 

York 265 

Hennenlotter  v.  De  Orvana- 
nos   333 

Hillman,  Skolny  v 571 

Horn,     Chemung     Iron     & 

Steel  Co.  V 380 

Huitman,  People  ex  rel.,  v. 

Gilchrist 651 

Hutchins,  Woolley  v 11 

I. 

International  Cheese  Co.  v. 
Garra 543 

International  Federation  of 
Workers,  Pre'  Catelan, 
Inc.,  V 662 


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TABLE  OF  CASES  REPORTED. 


xiu 


International  Railway  Co.  v. 
Pickarski 349 

Irving  National  Bank,  Was- 
sennan  v 704 

Isaacs  V.  P^qui table  Life  As- 
surance Society 468 

J. 

Jackson  v.  Grey 92 

Jones  V.  Cocotnitros 447 

K. 

Kalirs  V.  Eygabroad 395 

Kank  Realty  Co.  v.  Brown.  357 
Kavanaugh  v.  Cohoes  Power 

&  Light  Corp 590 

Koith,  A.  Paul,  Matter  of. .  86 
Kcmmelick  v.  Kemmelick..  198 
Kibner    v.    State    of    New 

York 444 

Klingenbeck  v.  Young 121 

Knott,     Plymouth     Rubber 

Co.  V 605 

Kolb,  C.  Gottlob,  Matter  of.  361 

Konshner,  Schubach  v 354 

Kimtzsch,  Gustav  H.,  Mat- 
ter of  694 

Kupchick  V.   Levy 533 

Kurlander  Bros.  &  H.  C.  & 

S.  Co.,  Potter  V 117 

Kussold  V.  Behrman 682 

L. 

Lee,     Benjamin     Franklin, 

Matter  of  511 

Lehigh  Valley  Railroad  Co., 

Loomis  V 4S0 

L#^sser  v.  Lesser 701 

lievy,  Kupchick  v 533 

TJchtenberg,  Benjamin,  Mat- 
ter of  89 

Lincoln,  Loivell,  Matter  of.    45 


VAQM. 

Loew  V.  Ostreicher  Bros...  404 
Loomis    V.    Lehigh    Valley 
Railroad  Co 480 

M. 

McDonough,  Byrne  v 529 

McGuire,  Francis  S.,  Mat- 
ter of  81 

McMullen,  Lena,  Matter  of.  505 
McOwen,  Ellen,  Matter  of. .  151 

jradden  v.  Rosseter 416 

Maison  Bernard  Importing 
Co.,  Inc.,  H.  &  K.  Cos- 
tume Co.,  Inc.,  V 553 

Manhattan    Life    Ins.    Co., 

Fletcher  V 409 

Martin,   507   Madison   Ave. 

Realty  Co.,  Inc.,  v 315 

Matter  of  Beckman,  Gerard     73 

Matter  of  Beth  Israel 582 

Matter  of  Burnham,  Matil- 
da E 455 

^Matter  of  Canda,  Louisa  S.  101 
Matter  of  Cash,  Mary  B..  (541 
Matter    of     Central     I^iion 

Trust  Co 214 

Matter    of    Cutler,    Lillian 

Yongan 203 

Matter  of  Duff,  Michael...  309 
Matter  of  Einstein,   Henry 

L '.   452 

Matter  of  Fitzsimmons,  An- 
nie       71 

Matter  of  Fox,   John 368 

Matter       of       Fredenburg, 

David 299 

Matter  of  Gaflfken,   Arthur 

Henry 693 

Matter  of  Goodwin,  Nat  C.     39 
Matter  of  Keith,  A.  Paul. .     86 
Matter  of  Kolb,  C.  Gottlob.  361 
Matter  of  Kuntzsch,  Gustav 
H 694 


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nv 


TABLE  OF  CASES  REPORTED. 


PAGE. 

Matter    of    Lee,    Benjamin 

Franklin    511 

Matter  of  lichtenberg,  Ben- 
jamin       89 

Matter  of  Lincoln,  Lowell. .  45 
Matter  of  McGuire,  Francis 

S 81 

Matter  of  McMuUen,  Lena.  505 
Matter  of  McOwen,  Ellen. .  151 
Matter  of  Metzger,  Justine 

R 313 

Matter  of  Miller,  Ella  J. . .  283 
Matter  of  Mitchell,  John  A.  370 
Matter  of  O'Connor  v.  Pub- 
lic Service  Commission..  337 

Matter  of  Prime 720 

Matter  of  Rowley,  William 

S 375 

Matter  of  Seeley 633 

Matter  of  Shulenburg,  John 

C 155 

Matter  of   SuUard,    George 

F 288 

Matter  of  Tymeson,  Eugene  643 

May  V.  Dermont 106 

Aleer,  Guaranty  Trust  Co.  v.  327 
Mehlhop   V.   Central   Union 

Trust  Co , 464 

Metzger,  Justine  R.,  Matter 

of   313 

Michaels  v.  Flach 225 

Miller,  Ella  J.,  Matter  of. .   283 

Miller  v.  Walsh 430 

Mitchell,    John   A.,    Matter 

of   370 

Model     Building     &    Loan 

Assn.   V.    Reeves 137 

Molloy  V.  Coletti 177 

Mullen     Cont.     Co.,     Inc., 
People  ex  rel.  v.  Craig. .  216 

N. 

National   City   Bank,   Slat- 
tery  &Co.  V 48 


PAQI. 

National  Piark  Bank  v.  Old 

Colony  Trust  Co 127 

Northmann  v.  Haas 384 

Northway  Holding  Co.,  Inc., 
V.  Parker 57 

0. 

O'Connell  v.  Sugar  Products 
Co 540 

O'Connor,  Matter  of,  v. 
Public  Service  Commis- 
sion      337 

Old  Colony  Trust  Co., 
National  Park  Bank  v...   127 

Ostreicher  Bros.,  Loew  v. .  404 

Owen  V.  Bodine 142 

p. 

Palisades    Interstate     Park 

Comm.,  Dietrich  v.. .  .425,  429 
Parker,   Northway   Holdinf? 

Co.,  Inc.  V 57 

Parucki  v.   Polish  National 

Catholic  Church 6 

Patane    v.     State    of    New 

York 713 

Payne,  Sneddon  v 537 

People  v.  Bryant  Co VS.] 

People  v.  Giordano   62 

People  V.  Zittel 33 

People  ex  rel.  Astoria  Light, 

H.  &  P.  Co.  V.  Cantor. . .  419 
People  ex  rel.  Buffalo  Con- 
sistory V.  Betz 124 

People  ex  rel.   Hultman  v. 

Gilchrist    651 

People  ex  rel.  Mullen  Cont. 

Co.,  Inc.,  V.  Craig 216 

Pfaudler  v.  Pfaudler  Co. . .  477 
Pfaudler  Co.,  Pfaudler  v...  477 
Pickarski,         International 

Railway  Co.  v 349 

Plymouth    Rubber    Co.    v. 

Knott   695 


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TABLE  OF  CASES  REPORTED. 


XV 


Polish  National  Catholic 
Chuiehy  Parucki  v 6 

Pontrelli,  Guida  v 181 

Postal  Telegraph  Cable  Co. 
V.  City  of  Jamestown. . .  689 

Potter  v.  American  Union 
Line,  Inc 101 

Potter  V.  Kurlander  Bros.  & 
H.  C.  &  S.  Co 117 

Pre'  Catelan,  Inc.,  v.  Inter- 
national Federation  of 
Workers    662 

Prime,  Matter  of 720 

Publieker  Commercial  Alco- 
hol Co.  V.  Roberts 561 

Public  Service  Commission, 
Matter  of  O'Connor  v. . .  337 

B. 

Baporel    S.    S.   Line,   Inc., 

Starace  &  Co.,  Inc.,  v. .  Ill 
Reardon,   Inc.,   Childs   Co., 

Inc.,   V 178 

Reeves,   Model   Building   & 

Loan  Assn.  v 137 

Revillon  v.  Demme 1 

Riccobono  v.  Cleary 174 

Rittenberg  v.  Barrett 167 

Roberts  &  Co.,  Inc.,  United 
States  Cast  Iron  Pipe  & 

Foundry  Co.  v 560 

Roberts,  Publieker  Commer- 
cial Alcohol  Co.  V 551 

Robinson  v.   State  of  New 

York    708 

Rosseter,  Madden  v 416 

Rowley,  William  S.,  Matter 

of   375 

Rzepecka  y.   Urbanowski . .     30 

s. 

Schaefer  v.  Steuemagel. . . .  546 

Schenck,  Underbill  v 520 

Schnbach  v.  Konshner 354 

Seeley,  Matter  of 633 


Sharpe,  Buckley  y 206 

Sherlock  v.  State  of  New 
York 491 

Sherwood,  Butler  y 483 

Shulenburg,  John  C,  Mat- 
ter of 156 

Skolny  v.  Hillman 571 

Slattery  &  Co.  v.  National 
City  Bank 48 

Sneddon  v.  Payne 537 

Spinz  Holding  Corp.,  Van 
Etten  V 436 

Starace  &  Co.,  Inc.,  v.  Ra- 
porel  S.  S.  Line,  Inc 111 

State  of  New  York,  Best  v.  272 

State  of  New  York,  Cooley 
V 717 

State  of  New  York,  Dale 
Engineering  Co.  v 233 

State  of  New  York,  Heine- 
mann  v 265 

State  of  New  York,  Ebner 
V 444 

State  of  New  York,  Patane 
V 713 

State  of  New  York,  Robin- 
son V 708 

State  of  New  York,  Sher- 
lock v 491 

Steuemagel,  Schaefer  v. . . .  546 

Stewart,  Burgess  Bros  Co., 
Inc.,  V 673 

Stockbridge,  163  East  36th 
Street  Corp.  v 98 

Sturges  V.  Sturges 475 

Sugar  Products  Co.,  O'Con- 
nell  V 540 

SuUard,  Gteorge  F.,  Matter  of  288 

T. 

Taplinger  &  Co.  v.  Ward  & 

Co 115 

Thurlow,  Falk  v 686 

Tobias  Tile  Co.,  Inc.,  v. 
Topping  Realty  Co.,  Inc.  500 


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XVI 


TABLE  OF  CASES  REPORTED. 


Toohey,  Wood  Mowing  ft 
Reaping  Machine  Co.  y. .  185 

Topping  Realty  Co.,  Inc., 
Tobias  Tile  Co.,  Inc.,  v..  500 

Trainor,  Weinman  v 403 

Tymeson,  Eugene,  Matter  of  643 

u. 

Underhill  v.  Sehenck 520 

United  States  Cast  Iron  Pipe 
&  Foundry  Co.  v.  Roberts 

&  Co.,  Inc 560 

Urbanowski,  Rzepeeka  y...     30 

V. 

Van  Etten  y.  Spinx  Hold- 
ing Corp 436 

W. 

Walsh,  Miller  v 430 

Ward  &  Co.,  Taplinger  & 
Co.y. 115 


Wassermau   v.    Irving   Na- 
tional Bank 704 

Waters  v.  Beau  Site  Co 65 

Weinman  v.  Trainor 403 

Wood  Mowing  &  Reaping 

Machine  Co.  v.  Toohey. .  185 
WooUey  v.  Hutchins 11 

Y. 

Toung,  Elingenbeck  y 121 

z. 

Zittel,  People  v 33 

17  &  19  East  95th  St,  Inc., 

V.  Bernstein  513 

163  East  36th  Street  Corp. 

V.  Stockbridge  98 

400      Manhattan      Avenue 

Corp.  V.  Danziger 79 

507    Madison    Ave.    Realty 

Co.^  Inc^  y.  Martin 315 


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TABLE  OF  CASES  CITED. 


riGB. 


A. 

Abbott  y.  Draper 4  Den.  61 549 

Abramowitz  v.  Gray 50  Misc.  Rep.  639 559 

Adams  v.  Cordis 8  Pick.   260 4 

Adams  v.  Massey 184  N.  Y.  62 304 

Alcock  V.  Hopkins 6  Cush.  484 4 

Aldridge  V.  Aldridge 202  Mo.  565 487 

Allen  V.  AUen 149  N.  Y.  280 28 

Allen  V.  Carman-American  In- 
surance Co 123  N.  Y.  6 473 

Alsens  A.  P.  C.  Works  v.  Deg- 

non  Contracting  Co 222  N.  Y.  34 288 

Ament  v.  Schubert  Piano  Co. . .      172  App.  Div.  423 402 

American  Bank  Note  Co.  v.  State 

of  New  York  64  Ap.  Div.  223,  227 249 

American  Qroeer  Pub.  Assn.  y. 

Grocer  Pub.  Co 51  How.  Pr.  402,  403 525 

American  Malting  Co.  y.  Keitel.      209  Fed.  Repr.  351,  358 183 

American    Washboard    Co.     y. 

Saginaw  Co 103  Fed.  Repr.  281,  285. . .  656 

Ames   y.   Manhattan   Life   Ins. 

Co 40  App.  Diy.  465;  affd.,  167 

N.  Y.  584 473 

Amoskeag  Mfg.  Co.  y.  Spear. . .      2  Sandf.  599,  605,  606 656 

Amsink  v.  Rogers 189  N.  Y.  252 334,  335 

Anderson  y.  Hicks 150  App.  Div.  289,  293.200,  201 

Arnold  v.  State  of  New  York. .  163  App.  Div.  253,  261.498,  500 

Asche  v.  Asche 113  N.  Y.  322 28 

Ashley  v.  Dixon 48  N.  Y.  430 182 

Atchison,  T.  &  S.  P.  Ry.  Co.  y. 

Gee 139  Fed.  Repr.  582,  584.189,  671 

Atlantic  &  Pacific  R.  R.  Com- 
pany v.  Laird 164  U.  S.  393 427 

Automobile  Ins.  Co.  v.  Guaranty 

Securities  Corporation 240  Fed.  Repr.  222,  225 183 

Avery  v.  Willson 81  N.  Y.  341 390 


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xviii        TABLE  OF  CASES  REPORTED. 


B. 

Bacon  y.  Dinsmore 42  How.  Pr.  368 172 

Baker  V.  Nat  Exchange  Bank..  100  N.  T.  31 699 

Banks  v.  Mayor 7  Wall  16 421 

Banzer  v.  Banzer 156  N.  Y.  429 304 

Barnes  v.  Chicago  Typo.  Union.  232  111.  402 671 

Barnes  v.  Stem  Bros 89  Misc.  Rep  385 70 

Barto  V.  Himrod 4  Seld.  483 244 

Bauer  v.  State  of  New  York. . .  106  Misc.  Rep.  1 709 

Beck     V.     Railway     Teamsters 

Union 118  Mich.  497 671 

Bedlow  V.   New  York  Floating 

Dry  Dock  Co 112  N.  Y.  262,  283 625 

Beers  v.  New  York  Life  Ins.  Co.  66  Hun,  75 415 

Bell  v.  Chapman 10  Johns.  183 695 

Benedict  v.  Webb 98  N.  Y.  460 28 

Bennett  v.  Byrne 2  Barb.  Ch.  216,  219 85 

Bernard    v.    United    Life    Ins. 

Assn 17  Misc.  Rep.  115 474 

Bimgruber   v.    Town    of    East- 

chester  54  App.  Div.  80 446 

Blackstone  v.  Miller 188  U.  S.  189,  204 164 

Blake  V.  Barnes 9  N.  Y.  Supp.  933 ;  30  N.  Y. 

St.  Repr.  299 409 

Blodgett  V.  Webster 24  N.  H.  91 64 

Bodine  v.    Exchange   Fire   Ins. 

Co 51  N.  Y.  117,  122,  123... 

472,  473,  474 

Boon  V.  Castle 61  Misc.  Rep.  474 486 

Booth  V.  Baptist  Church 126  N.  Y.  215 25 

Booth  V.  Burgess 72  N.  J.  Eq.  181,  188 183 

Borden  v.  N.  Y.  C.  R.  R.  Co. . . ,  98  Misc.  Rep.  574 68 

Boucicault  v.  Boucicault 21  Hun,  431 476 

Bowen  v.  State  of  New  York. . .  108  N  Y.  166 499 

Boyd  V.  United  States  Mortgage 

&  Trust  Co 187N.Y.262 576 

Bradt  v.  Church 110  N.  Y.  537 621 

Brady  v.  Cassidy   145  N.  Y.  171 390 

Brede  v.  Rosedale  Terrace  Co. .  216  N.  Y.  246 384 

Brewer  v.  Brewer 11  Hun,  147;  affd.,  72  N.  Y. 

603   28 

Brewster  V.  Van  Ness 18  Johns.  133 209,  210 

Briggs  V.  Partridge 64  N.  Y.  357,362 531,  533 


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TABLE  OF  CASES  REPORTED. 


xix 


Brinkeriioff  v.  Seabury. 


Brinkley  v.  Waleott 

Britton  v.  Ferrin 

Brooks  V.  Dinsmore 

Brown  v.  Cody 

Brown  v.  N.  Y.  C.  R.  R.  Go 

Bmder  v.  Crafts  &  D'Amora  Co. 

Bryan  v.  McGnrk 

Biyaon  v.  St  Helen 

Bnekmaster  v.  Thompson 

Bidlen  v.  State  of  Wisoonsin. . . 
Bnlova  v.  Bamett,  Ine 


Burgess  v.  AUmnoe  Ins.  Co. . 

Burgess  v.  Bnrgess 

Buii^e  V.  State  of  New  York. 
Burks  V.  State  of  New  York. . 

Bum  V.  Phelps 

Burrow  v.  Mareeau 

Burt  V.  Duteher 

Bush  v.  Prosser 

Bushneli  y.  Bushnell 


PAsa. 
137  App.  Diy.  916;   affd., 

201N.  Y.  569 22,    26 

10  Heisk.  (Tenn.)  22 516 

171N.  Y.235 699 

16  Daly,  428 172 

23  App.  Div.  210 567 

44  N.  Y.  79 357 

79  Misc.  Rep.  88 318 

200  N.  Y.  332 149 

79  Hun,  167 443 

36N.  Y.558 357 

240  U.  S.  625 164 

111    Misc.    Rep.   160;    193 

App.  Div.  161 93 

10  Allen,  221 4 

3  De  Gez,  M.  &  G.  896. ...  479 

64  Misc.  Rep.  558 499 

13  Court  of  Claims,  163.499,  500 

1  Stark.  94 542 

124  App.  Div.  665,  669. .. .  479 

34N.  Y.  493 700 

11 N.  Y.  347,  352 667 

15  Barb.  399 476 


c. 

Campbell  y.  Beaumont 91  N.  Y.  464 304 

Cauda  y.  Totten 157  N.  Y.  281 411,  412 

Carney  y.  New  York  life  Ins. 

Co 162  N.  Y.  453 416 

Carow  V.  Mowatt 2  Edw.  Ch.  56 298 

Carpenter  v.  Newland 92  Misc.  Rep.  596 230 

Carpenter  v.  State 39  Wis.  271 241 

Carr  v.  Ellison 20  Wend.  177 451 

Caseo  Bank  v.  Keene 53  Maine,  103 54 

Casey.  Case 203  N.  Y.  263 531 

Casper  y.  Kuhne 79  Misc.  Rep.  411 336 

Cass  y.  Realty  Securities  Co. . .  148  App.  Div.  96,  100 509 

Cave  V.  Osborne 193  Mass.  482 660 

Cayuga  County  v.  State  of  New 

York 153  N.  Y.  279 247,  260 

Cassani  y.  Title  Guar.  &  Trust 

Co.   176  App.   Diy.  369;  affd., 

220  N.  Y.  683 612 

Central  Bank  of  Troy  v.  Hey- 

dom  48N.  Y.260 620,622,623 


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TABLE  OF  CASES  CITED. 


Chamberlain  V.  Taylor 105  N.  Y.  184-194. 28 

Chapman  V.  Forbes 123  N.  Y.  532,  538 442 

Chastainv.  TUford 201  N.  Y.  338 22 

Chads  Co.  V.  Burke 110  Misc.  Rep.  103 319 

Church  v.  LaFayette  Fire  Ins. 

Co 66  N.  Y.  222 475 

Church  V.  Shultes 4  App.  Div.  378 622 

City  of  Geneva  v.  Henson 195  N.  Y.  447 433,  434 

City  Trust,  Safe  Deposit  ft 
Surety  Co.  v.  American  Brew- 
ing Co 182  N.  Y.  285 531 

Clarage  v.  Luphringer 202  Mich.  612 671 

Clarke  v.  Leupp 88  N.  Y.  228 304 

Clark  V.  Fosdick 118  N.  Y.  7 322,  323 

Clark  V.  West 193  N.  Y.  349 288 

Clason  V.  Baldwin 152  N.  Y.  210 160 

Clay  V.  Wood 153  N.  Y.  134 304,  305 

Clift  V.  Moses 116  N.  Y.  144,  158 296 

Cluett  V.  Couture 140  App.  Div.  830. 53 

Cochrane  v.  Schell 140  N.  Y.  516 25 

Coddington  v.  Lamer 75  App.  Div.  293,  532.  .200,  201 

Cohen  v.  Teller 93  Penn.  St.  123 54 

Cole  V.  Stete  of  New  York....  102  N.   Y  46,  48,  51,  52, 

59 245,  246,  250,  254 

Collier  v.  Coates 17  Barb.  471 549 

Collins  V.  Hasbrouck 56  N.  Y.  157 541 

•  Columbus  Ry.   Power   &  Light 

Co.  V.  City  of  Columbus 249  U.  S.  399.... 235,  255,  256 

Commercial    National    Bank    v. 

HeUbronner 108  N.  Y.  439 699 

Commonwealth  v.  Haupt 10  Allen,  38 4 

Conaughty  v.  Nichols 42  N.  Y.  83 567 

Coney  v.  Town  of  Gilboa 55  App.  Div.  Ill 280 

Congregation  Kehal  Adath  v. 
Universal  Building  &  Construc- 
tion Co 134  App.  Div.  368,  370.411,  412 

Connoss  v,  Meir 2  E.  D.  Smith,  314 567 

Conrow  v.  Little. . , 115  N.  Y.  394 516 

Converseville  Co.  v.  Chambers- 
burg  Woolen  Co 14  Hun,  509 700 

Coope  V.  Lowerre 1  Barb.  Ch.  45 155 

Cornwall  v.  Cornwall 1  Dem.  1 469 

Cortland    County    v.    Herkimer 

County 44N.Y.26 397 


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TABLE  OF  CASES  CITED.  xxi 

PAGB. 

Corwith    Fint    State   Bank   y. 

Williams   143  Iowa,  177 54 

Covell  V.  Weston 20  Johns.  414 297 

Cowenhoven  V.  Ball 118  N.  Y.  234 286 

Crackanthorpe  v.   Sickles 156  App.  Div.  753 166 

Grain  v.  Cavana 36  Barb.  410 160 

CrandaU  v.  Shaw 2  Bedf .  lOO 459,  462 

Crayton  v.  Larabee 220  N.  Y.  493 639 

Gronin  v.  Manhattan  Transit  Go.      124  App.  Div.  543 55,  56 

Gruger  V.  McLaiiry 41  N.  Y.  219 619 

Gruikshank  v.  Goodwin 20  N.  Y.  Supp.  757 353 

Gtinard  v.  Francklyn Ill  N.  Y.  511 568 

Gunningham  v.  Pattee 99  Mass.  248 451 

Curran  v.  Galen 152  N.  Y.  33-37 670 

Cutter  v.  Ghidebrod  Bros.  Go..  36  App.  Div.  362;  46  App. 

Div.  605;  afld.,  168  N.  Y. 

512 479,480 

D. 

Dale  V.  Guaranty  Trust  Co. ....      168  App.  Div.  601 512 

Daly  V.  Comwell 34  App.  Div.  27 182 

Daly  V.  Wolaneck 29  Misc.  Rep.  162 408 

Dana  v.  Murray 122  N.  Y.  604 28 

Davis  V.  Davis 75  N.  Y.  221 701,  703 

Davis  V.  Grand  Rapids  Fire  Ins. 

Go 7  App.  Div.  403,  405 692 

Davis  V.  MacMahon 161   App.   Div.  458;  affd., 

214  N.  Y.  614 25 

Davis  V.  Solomon 25  Misc.  Rep.  695 353 

Davis  V.  Zimmerman 91  Hun,  492 581 

Day  V.  United  Stetes 245  U.  S.  159 256 

Deeves  &  Sons  v.  Manhattan  Life 

Ins.   Go 195  N.  Y.  324 390 

DeJong  V.  Behrman  Go 148  App.  Div.  37 182 

Delafield  v.  Shipman 103  N.  Y.  463. 25 

Delage  v.  Normandeau. 9  Queb.  Q.  B.  93 183 

Denton  V.  Denton IJohns.  Ch.  365,  441 476 

DePeyster  v.  Michael 6  N.  Y.  467 616 

Despard  v.  Walbridge 15  N.  Y.  375 515 

Devisees  of  Van  Rensselaer  y. 

Executor  of  Platner 2  Johns.  Gas.  26 616 

Dexheimer  v.  Gautier 34  How.  Pr.  471 489 

Dexter  v.  Norton 47  N.  Y.  62-65 326 

Dickey  v.  Mutual  Film  Corp 160  N.  Y.  Supp.  609 524 


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xxii  TABLE  OF  CASES  CITED. 

Dillon  V.  Anderson 43  N.  Y.  236 398 

DiMarco  v.  State  of  Nenv;  York. .  110  Misc.  Rep.  426 428 

Dodge  V.  Cornelius 168  N.  Y.  242 66 

Doran  v.    Chase 2  YHdy.  Notes  (Pa.)  609..  542 

Dorrer  v.  Town  of  Callicoon 183  App.  Div.  186 280 

Doad    V.    Huntington    Hebrew 

Congregation   178  App.  Div.  748. ... 148 

Dougherty  v.  Thompson 167  N.  Y.  472 25 

Dowling  V.  Hastings 211  N.  Y.  202 352 

Drake  v.  New  York   Suburban 

Water  Co 36  App.  Div.  276 442 

Drake  v.  Seaman 97  N.  Y.  230 357 

Draper  v.  Oswego  County  F.  R. 

Assn 190  N.  Y.  12,  16 286 

Duff  V.  Rodenkirchen 110  Misc.  Rep.  575 ;  aff d., 

193  App.  Div.  898 311 

Duncan  v.  Jones 32  Hun,  12 173 

Duplex   Printing   Press   Co.   v. 

Deering   U.  S.   Supreme  Court  Ad- 
vance Opinions,  February 

1,  1921,  p.  176 678 

Dwight  V.  Germania  Life  Ins. 

Co 84  N.  Y.  493,  506.  .568,  569,  670 

Dworsky  v.  Amdtatein 29  App.  Div.  274 160 

Dwyer  v.   Slattery 118  App.  Div.  346 570 

Dykers  v.  Townsend 24  N.  Y.  67 ....531,533 

E. 
Educational  Films  Corp.  v.  Lin- 
coln &  P.  Co.,  Inc 192  App.  Div.  621 169 

Ehrgott  V.  City  of  New  York. .  96  N.  Y.  264,  277 568 

EDiott  V.  Kennedy 26  How.  Pr.  422 376 

Eppens,  Smith  &  Weimann  Co. 

V.  Littlejohn 164  N.  Y.  187 382 

Equitable  Trust  Co.  v.  Keene. .  Ill  Misc.  Rep.  544 329 

Erie  R.  R.  Co.  v.  City  of  Buffalo.  180  N.  Y.  197 9 

Evans  v.  Evans 69  Misc.  Rep.  86. 486 

Ex  parte  Willocks 7  Cow.  402 9 

P. 

Fair  v.  Kenny 103  Misc.  Rep.  412 376 

Farenholtz  v.  Meinshausen 181  App.  Div.  474 695 

Fargo  V.  McVicker 55  Barb.  437 172 


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TABLE  OF  CASES  CITED.  xxiii 


Farmers  Loan  &  Trust  Co.  y. 

Kip 192  N.  Y.  266,  278 167 

Fay  V.  Marx 2  Bradbury  PL  &  Pr.  81..  408 

Fealy  v.   Bull 11  App.  Div.  468 402 

Fearon  v.  Earl  of  Aylesford. . .       14  Q.  B.  Div.  792 323 

Ferguson  v.    Crawford 70  N.  Y.  253 377 

Ferguson  v.  Town  of  Lewisboro.       213  N.  Y.  141 446 

Fero  V.  Fero 62  App.  Div.  470 201 

Fink  V.  Wallach 47  Misc.  Rep.  242 376 

Finnegan  v.  McGuffog 139   App.   Div.    899 ;   affd., 

203  N.  Y.  342 140 

First  Construction  Co.  v.  State 

of  New  York 221  N.  Y.  295 434 

First  National  Bank  v.  American 

Exch.  Nat  Bank 49  App.  Div.  349 ;  affd.,  170 

N.    Y.    88 53 

Fisher  v.  Corwin 35  Hun,  253 692 

Fitzsimmons  v.  City  of  Brooklyn      102  N.  Y.  538 271 

Flansburg  v.  Town  of  Elbridge.       205  N.  Y.  423 279 

Fleischman  v.  Furgueson 223  N.  Y.  235 606 

Fleischman  v.  Plock 19  Misc.  Rep.  649 549 

Fogg  V.  Edwards 57  How.  Pr.  200 504 

Foose  V.  Whitmore 82  N.  Y.  405 305 

Forster  v.  Kane 1  Dem.  67 " 462 

Foshay  v.  Robinson 137  N.  Y.  134 441 

Foster  v.  Retail  Clerks'  Protec- 
tive Assn 39  Misc.  Rep.  48,  57 189 

Fox  V.  Hawkins 150  App.  Div.  801 532 

Francklyn  v.  Sprague 10  Hun,  689 700 

Frank  v.  Morewood  Realty  Hold- 
ing Co 89  Misc.  Rep.  425 100 

Fraves   v.    American    Exchange 

Bank    17  N,  Y.  205 51 

Freeholders  v.  Strader 18  N.  J.  Law,  108 429 

French  v.  Dauchy 134  N.  Y.  543 297 

Frey  &  Son,  Inc.  v.  Sherburne 

Co 193  App.  Div.  849 132 

Frohman  v.  Fitch 164  App.  Div.  231 523 

Fry  V.Bennett 6  Sand.  54 567 

Fullerton  v.  Gaylord 30  N.  Y.  Sup.  Ct  551,  557.  5f8 

Fulton  Light,  H.  &  P.   Co.  v. 
StoteofNewYork 200  N.  Y.  400 436 


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xxiv  TABLE  OP  CASES  CITED. 


Gabrielson  v.  Waydell 135  N.  Y.  1 589 

Galuflha  v.  Galusha 116  N.  Y.  035 322,  323,  324 

Ganson  v.  Tifft 71  N.  Y.  54 541 

Gardiner  v.  Gardiner 3  Abb.  N.  C.  1 476 

Garvey  v.  McDevitt 72  N.  Y.  556 28 

Gass  V.  Souther 46  App.  Div.  256  j  affd,,  167 

N.  Y.  604 441 

Gay  V.  Ulrichs 136  App.  Div.  809 347 

Gee  V.  Chase  Mfg.  Co 12  Hun,  630 5G8 

General  Baking  Co.  v.  Daniell . .  181  App.  Div.  501 59 

George  Jonas  Glass  Co.  v.  Glass 

Bottle  Blowers  Assn.  of  U.  S. 

&  Canada 72  N.  J.  Eq.  653;  affd.,  77 

id.  219 671 

Gluckman  v.  Darling 85  N.  J.  L.  457 54 

Goldfelder  v.  Greenberg. ..;...  189  App.  Div.  184 55 

Goldstein  v.  Pullman  Co 220  N.  Y.  549,  552,  553. .. .  539 

Goodman  v.  Alexander 165  N.  Y.  289 232 

Goodwin  v.  Coddington 154  N.  Y.  283,  286 304 

Goodyear  Tire  &  Rubber  Co.  v. 

Vulcanized  Products  Co 228  N.  Y.  118,  125 390 

Gotthelf  V.  Krulewitch 153  App.  Div.  746 351 

Gourley  v.  Linsenbigler 51  Penn.  St.  345 489 

Grafton  v.  Cummings 99  U.  S.  100 532 

Graham  v.  Healy 154  App.  Div.  76 , . . .  549 

Graham  v.  Van  Wyck 14  Barb.  531 160 

Grant  v.  Healy ,  10  Fed.  Cas.  978 4 

Greenland  v.  Waddell 116  N.  Y.  234,  240 72 

Griffin  v.  Kinsley 75  111.  411 516 

Griswold  v.  Haven 25  N.  Y.  595 138 

Groat  V.  Gile 51  N.  Y.  442 700 

Grymes  v.  Hone 49  N.  Y.  17 488 

Guiteman  v.  Davis 45  Barb.  576 4 

Guttag  V.  Shatzkin 194  App.  Div.  509 517 

H. 

Haddock  v.  Haddock 201  U.  S.  662 130 

Hadfield  v.  Colter 188  App.  Div.  563 391 

Haffey  v.  Lynch 143  N.  Y.  241 687,  688 

Hagar  v.  Clark 78  N.  Y.  45 102 

Hager  v.  Henneberger 83  Misc.  Rep.  417 532 


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TABLE  OP  CASES  CITED.  xxv 


Haight  V.  BriBbin 100  N.  Y.  219 297 

Hampton  &  B.  R.  &  Lumber  Co. 

V.  Sizer 31  Misc.  Rep.  499 700 

Harbeck  v.  Vanderbilt 20  N.  Y.  395,  397 351,  352 

Harriott  v.  Plimpton 166  Mass.  586 183 

Hartford  v.  Greenwich  Bank. . .  157  App.  Div.  448 53 

Hasbrouek  v.  New  York  Central 

&H.  R.  R.  R.  Co 202  N.  Y.  363 68,  539 

HascaU  V.King 162  N.  Y.  134 22 

Hauselt  V.  Patterson 124  N.  Y.  349 297 

Hawkins  v.  Union  Trust  Co. . . .  187  App.  Div.  472 44 

Haynes  v.  Aldrich 133  N.  Y.  287 515 

Haynes  v.  Sherman 117  N.  Y.  433 20,    28 

Heavey  v.  Commercial  National 

Bank 27  Utah,  222 52,    53 

Heffner  v.  Dawson 63  111.  403 54 

Heitkamper  v.  Hoffmann 99  Misc.  Rep.  543-546 580 

Heller  v.  Levinson 166  App.  Div.  673 377 

HeUing  v.  Boss 121  N.  Y.  Supp.  1013 577 

Hendricks  v.  Isaacs 117  N.  Y.  411 159 

Hennessy  v.  Patterson 86  N.  Y.  91 25 

Heuman  v.  Powers  Co 226  N.  Y.  205 69 

Hibernia  National  Bank  v.  La- 
combe  84  N.  Y.  367 335 

Hibernia  Savings  &  Loan  Society 

v.  San  Francisco 72  Pac.  Repr.  920;  affd.,  200 

U.  S.  310 422 

Higgins  Co.  v.  Higgins  Soap  Co.  144  N.  Y.  462,  468 479 

Hill  V.  Moore 131  App.  Div.  365 296 

Hitchman  Coal  &  Coke  Co.  v. 

Mitchell  245  U.  S.  229 577,  678 

Hobson  V.  Hale 95  N.  Y.  588,  607 13,    28 

Holbrook  v.  Nesbitt 163  Mass.  120,  125 656 

Holland-Dale  Garden  Company, 

Inc.  V.  State  of  New  York. . .  113  Misc.  Rep.  219 709 

Holley  V.  Chamberlain 1  Redf.  333 83 

Holmes  v.  North  German  Lloyd 

S.  S.  Co 184  N.  Y.  280 539 

Holthausen  v.  Kells 18  App.  Div.  80 294 

Hone's  Exrs.  v.  Van  Schaick. ...  20  Wend.  564 20 

Hood  V.  Hood 85N.  Y.561 297 

Hosford  V.  BaUard 39  N.  Y.  147 618 

Hostetter  v.  Park 137  N.  Y.  30 395 

Howard  V.  Dougherty... 3  Redf.  535 459 


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xxvi  TABLE  OF  CASES  CITED. 

WAQM. 

HubbeU  V.  Yonkers 104  N.  Y.  434 282 

Hnngarian  General  Credit  Bank 

V.  Titus 182  App.  Div.  826 695 

Hunt  V.  BaUey 39  Mo.  267 615,  516 

I. 

Imperator  Realty  Co.  v.  Tull. . .      228  N.  Y.  447 320 

Internoscia  v.  Bonelli 28  Queb.  Super.  58 183 

Irish  V.  Nutting 47  Barb.  370,  385,  387.487,  489 

Iron    Mountain,    etc.,    Rd.    ▼. 

Johnson 119  U.  S.  608,  611 32 

Israel  v.  Israel 38  Misc.  Rep.  335,  338 83 

Ives  V.  South  Buffalo  Railway 

Co 201  N.  Y.  271,  311 688 

J, 

Jaekson  V.  Chase 15  Johns.  354 692 

Jaekson  v.  Collins 11  Johns.  1 616 

Jaekson  v.  Decker 11  Johns.  418 695 

John  A.  Roebling's  Sons  Co.  of 

N.  Y.  V.  Erickson 261  Fed.  Repr.  986 589 

Johnson  y.  Phoeniz  Bridge  Co. .      197  N.  Y.  316 576 

Johnson  v.  Standard  Transpor- 
tation  Co 188  App.  Div.  934 589 

Johnston  v.  Donvan 106  N.  Y.  269 440 

Jones  v.  Hamersley 2  Dem.  286 459 

K. 

Kahlen  v.  State  of  New  York..      223  N.  Y.  383 434 

Kalem  v.  Harper  Bros 222  U.  S.  55 526 

Kalish  V.  Kalish 166  N.  Y.  368 22 

Kammerrer  v.  Ziegler 1  Dem.  177 294 

Karsch  v.  Pottier  &  S.  Mfg.  & 

Imp.  Co 82  App.  Div.  230,  233 10 

Kenney  v.  State  of  New  York. .      222  U.  S.  525 365 

KeUey   v.    St   Michaels   R.    C. 

Church 148  App.  Div.  707 10 

Kellogg  V.  Sowerby 190  N.  Y.  370 677 

Kelly  V.  Metropolitan  Railway 

Company  (1895) 1  Q.  B.  944 427 

KeUy  V.  Sheehy 60  How.  Pr.  439 33 

Kennedy  v.  City  of  New  York. .      196  N.  Y.  19,  23 515 

Kentucky    Distilleries,    etc.,    v. 

Wathen   110  Fed.  Repr.  641,  645. .. .  656 


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TABLE  OF  CASES  CITED.  xxvu 


Kershaw  t.  Kelaey 100  Mass.  561 695 

Kieman  v.  The  Dutchess  County 

Mutual  Insurance  Co 150  N.  Y.  190 286 

KUlie  \.  Dannert 232  Fed.  Repr.  104 351 

King  V.  Hudson  River  Realty  Co.      210  N.  Y.  467 320 

King  V.  Village  of  Fort  Ann. . .      180  N.  Y.  496 279 

Klein  V.  Beach 239  Fed.  Repr.  108;  232  id. 

240  523 

Klein  t.  Mechanics  &  Traders 

Bank    145  App.  Div.  617 532 

Knarston    v.    I^Ianhattan    life 

Ins.  Co 140  Cal.   57 287 

Knox  V.  Jones 47  N.  Y.  389 25,    26 

Knudsen  v.  Benn 123  Fed.  Repr.  636 671 

Kopelman  v.  Gritman 76  Misc.  Rep.  188 100 

Kom  ▼.  lipman 201  N.  Y.  404 347 

Krim  Realty  Corporation  v.  Var- 

vori    97  Misc.  Rep.  407 319 

Kromer  v.  Heim 75  N.  Y.  574 120 

Kunkel  v.  MacGill 56  Md.  120 374 

Knriger  v.  Joest 22  Ind.  App.  633 54 

L. 

LaddT.  AikeU 50  N.  Y.  Super.  Ct  150, 155      4 

La£Fey  V.  Kaufman 134  Cal.  391 550 

Lane  v.  Town  of  Hanco<^k 142  N.  Y.  510 280,  282 

Langdon  t.  New  York,  L.  E.  & 

W.  R.  Co 15  N.  Y.  Supp.  255 483 

Langstroth   v.    Turner   Cypress 

LomberCo 162   App.   Div.    818,    823; 

affd.,  220  N.  Y.  706.  .531,  533 

Larkin  v.  Watson  Wagon  Co. . .      68  App.  Div.  86 61 

Lasher  ▼.  Heist 126  111.  App.  82 515 

Lawrence  v.  Cooke 104  N.  Y.  632 305 

Lawrence  v.  Ely 38  N.  Y.  42 692 

Lawrence  v.  French 25  Wend.  443 542 

Lawrence  v.  Lawrence 32  Misc.  Rep.  503;  172  N. 

Y.  Supp.  146 160,  578 

Lawrenee  t.  litUefield 215  N.  Y.  561 91 

Leaver  v.  Gauss 62  Iowa,  314 486 

Ledwith  v.  Ledwith 1  Dem.  154 82 

Legal  Tender  Case 110  U.  S.  421,  444;  4  Sup. 

Ct  122,  28  L.  Ed.  204. . .  423 


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xxviii  TABLE  OF  CASES  CITED. 

PAQBw 

Lehigh    Valley    R.    R.    Co.    v. 

Canal  Board 204  N.  Y.  471 250,  253 

Lent  V.  Howard 89  N.  Y.  169 72 

Leonard  v.  Leonard 145  Mich.  563 486 

Leonard  v.  Whitson 34  Ind.  App.  383 183 

Leone  v.  Booth  Steamship  Co., 

Ltd 189  App.  Div.  185 589 

Levy  V.  Walker. 10  Ch.  D.  436,  448 656 

Lewis  V.  Whitnell.  .* 21  Ky.  190 550 

Light  V.  Light 124  App.  Div.  567 702 

Linton  v.  Unexcelled  Firewori<;'' 

Co 124  N.  Y.  533 567 

Locke  V.  State  of  New  York. . ,  140  N.  Y.  480,  481 428 

Lodge  V.  Spooner 8  Ghray,  166 4 

Loomis  V.  Lehigh  Valley  R.  R. 

Co 208N.  Y.  312;240U.  S.  43.  482 

Loomis  V.   Semper 38  Misc.  Kep.  570 147 

Losec  V.  Buc.Vanan 51  N.  Y.  47G,  484 359 

Lusk  V.  ITastings 1  Hill,  656 35.1 

Lyon  V.  B.?ard  of  Supervisor.?..  115  App.  D»v.  193. 640 

Lyon  V.  Olell 65  N.  Y.  28 621,  622 

M. 

McClelland  v.  Mutual  Life  Ins. 

Co 217  N.  Y.  33«,  346  et  seq. .  473 

McCuUoch  V.  Maryland 4  Wheat.  316,  4  L.  Ed.  579.  422 

McDowell  V.  Starobin  El.  Su]i- 

ply  Co 190  App.  Div.  676 391 

McGarry  v.  City  of  Buffalo. ...  53  N.  Y.  St.  Repr.  882. .. .  402 

McGuflan  V.  Dinsmore 4  Abb.  N.  C.  241 171 

Machson  v.  Katz N.  Y.  L.  J.,  Jan.  11,  1921.  515 

519 

Mackall  v.  Olcott 93  App.  Div.  282 412 

Madison  Ave.  Baptist  v.  Baptist 

Church  in  Oliver  St 46  N.  Y.  131 583 

Magnin  v.  Dinsmore 62  N.  Y.  35,  44 70 

Main  v.  Feathers 21  Barb.  646 616 

Manners  v.  Morosco 252  U.  S.  317-325,  326 528 

Manners  v.  Triangle  Film  Corp.  247  Fed.  Repr.  301,  303 524 

Mariani  Bros.,  Inc.,  v.  Wilson, 

Sons  &  Co.,  Ltd 188  App.  Div.  617. . . .  .112,  113 

Marine  v.  Jauncey 1  Barb.  486 7O0 

Marks  v.  Townsend 97  N.  Y.  590 407 

Martin  v.  Franklin 4  Johns.  124 4,  5 


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TABLE  OF  CASES  CITED.      xax 

PAOB. 

Martin  V.  New  York  life  Ins.  Co.      148  N.  Y.  117 269 

Mast,  Poos  &  Co.  V.  Stover 177  U.  S.  485 131 

Matsell  V.  Flanagan 2  Abb.  Pr.  (N.  S.)  459,  461.  526 

Matter  of  Albany  R.  R.  Co....      64  App.  Div.  257;  170  N. 

Y.  619 254 

Matter  of  Altman 87  Misc.  Rep.  255,  260 76 

Matter  of  Ammarell.v 38  Misc.  Rep.  399 41 

Matter  of  Archer 51  Misc.  Rep.  260 42 

Matter  of  Anowsmith 162  App.  Div.  623 369 

Matter  of  Austin 109  Misc.  Rep.  584 366 

Matter  of  Barbour 185  App.  Div.  445,454....  607 

509 

Matter  of  Bentley 31  Misc.  Rep.  656 36^ 

Matter  of  Berry 154  App.   Div.  609;   affd., 

209  N.  Y.  540 22,    26 

Matter  of  Bierstadt 178  App.  Div.  836 167 

Matter  of  Bishop 82  App.  Div.  112,  115.  .507,  509 

Matter  of  Blun 176  App.  Div.  189 167 

Matter  of  Bowers 183  N.  Y.  Supp.  137 167 

Matter  of  Brady Ill  Misc.  Rep.  492 43 

Matter  of  Bronson. 150  N.  Y.  1,  8. . .  .506,  508,  509 

Matter  of  Bnmdage. 31  App.  Div.  348 363 

Matter  of  Bnrdick 41  Misc.  Rep.  346 83 

Matter  of  Butterfleld 133  N.  Y.  473 22,    25 

Matter  of  Campbell 123   App.   Div.  212 ;  affd., 

192  N.  Y.  312 155 

Matter  of  Choate 105  App.  Div.  356 457 

Matter  of  City  of  Niagara  FaUs.      229  N.  Y.  333 343 

Matter  of  City  of  Yonkers 117  N.  Y.  564 433 

Matter  of  Cohn 187  App.  Div.  392 44 

Matter  of  Colgrove 221  N.  Y.  455 22 

Matter  of  Cooley 186  N.  Y.  220 509 

Matter  of  Crickard 52  Misc.  Rep.  63,  66 83 

Matter  of  Curser 89  N.  Y.  401 153 

Matter  of  D'Agostino 88  Misc.  Rep.  371,  375 152 

Matter  of  Delano 176  N.  Y.  486;  affd.,  sub 

nom.  Chanler  v.   Kelsey, 

205  U.  S.  466 163 

Matter  of  DePeyster. 210  N.  Y.  216 74 

Matter  of  Dobson 146  N.  Y.  357 640 

Matter  of  Dowa 167  N.  Y.   227;  affd.,  sub 

nom.  Orr  v.  Gillman,  183 

U.  S.  278. 163 


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XXX  TABLE  OF  CASES  CITED. 

PAOB. 

Matter  of  Dnrban 176  App.   Div.   688;  affd., 

220  N.  Y.  589 462 

Matter  of  Eddy 10  Misc.  Rep.  211 459,  462 

Matter  of  Enston 113  N.  Y.  174 506 

Matter  of  Prazier N.  Y.  L.  J.,  Mar.  28,  1912 . .  163 

Matter  of  Gardner 140  N.  Y.  122 304,  305 

Matter  of  Goldenberg 187  App.  Div.  692 311,  312 

Matter  of  Gould 19  App.  Div.  352;  156  N.  Y. 

423  363 

Matter  of  Gould  Coupler  Co. . . .      79  Hun,  206 443 

Matter  of  Gustow 220  N.  Y.  373 83 

Matter  of  Hanford 113  Misc.  Rep.  639 456 

Matter  of  Haxtum 102  N.  Y.  157 294 

Matter  of  Hazard 228  N.  Y.  26 365 

Matter  of  Hellman 172  N.  Y.  Supp.  671;  affd., 

187  App.  Div.  934;  affd., 

226  N.  Y.  702 47 

Matter  of  Henderson 157  N.  Y.  423 377,  378 

Matter  of  Hermann 178  App.  Div.  182 378 

Matter  of  Hitchcock 222  N.  Y.  57 22,  72,    73 

Matter  of  Howe 86  App.  Div.  286 ;  affd.,  176 

N.  Y.  570 165 

Matter  of  Hull Ill   App.   Div.   322 ;   aff4, 

186  N.  Y.  586 163 

Matter  of  Hunter 189  App.  Div.  805 150 

Matter  of  International  Railway 
Company    v.    Public    Service 

Commission 226  N.  Y.  479 342 

Matter  of  James 144  N.  Y.  6,  10 . .  .164,  506,  507 

Matter  of  Jensen  v.    Southern 

Pacific  Co 215  N.  Y.  514,  522 262 

Matter  of  Kemp N.  Y.  L.  J.,  Mar.  3,  1920. .  367 

Matter  of  Kent N.  Y.  L.  J.,  June  17, 1920. .  367 

Matter  of  Klein 92  Misc.  Rep.  318 363 

Matter  of  Knoedler 140  N.  Y.  377 453 

Matter  of  Lamb 139  N.  Y.  Supp.  685 83 

Matter  of  Lansing 182  N.  Y.  238,  247 164,  312 

Matter  of  Lee 220  N.  Y.  532 83 

Matter  of  Lichtenberg 171  N.  Y.  Supp.  570 89,    90 

Matter  of  Livingston 151  App.  Div.  1 314 

Matter  of  Lydig 113  Misc.  Rep.  263 164 

Matter  of  McGillicuddy 194  App.  Div.  28 363 

Matter  of  MacDowell 217  N.  Y.  454,  460 77 

Matter  of  Mahon  v.  Board  of 
Education   171  N.  Y.  263 250 


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TABLE  OF  CASES  CITED.  xxxi 

VkQU. 

Matter  of  Majot 199  N.  T.  29 » 164 

Matter  of  Mancini 89  Misc.  Rep.  83 83 

Matter  of  Martin 211  N.  Y.  328 230 

Matter  of  Moran 5  Misc.  Rep.  176 153 

Matter  of  Munsoa^. 70  Misc.  Rep.  461 41 

Matter  of  Naylor 189  N.   Y.   556;   affg.   120 

App.  Div.  738 311 

Matter  of  Norwood Ill  Misc.  Rep.  530 378 

Matter  of  Nuns 176  N.  Y.  Supp.  858 402 

Matter  of  Ormsby  v.  Bell 218  N.  Y.  213,  216 658 

Matter  of  Parker 226  N.  Y.  260 166 

Matter  of  Parsons 117  App.  Div.  321 454 

Matter  of  Peck N.  Y.  L.  J.,  Mar.  3,  1920. .  367 

368 

Matter  of  Penfold 216  N.  Y.  163 365 

Matter  of  Pine 133  App.  Div.  431 294 

Matter  of  Plath 56  Hun,  223 457,  459 

Matter  of  Porter 67  Misc.  Rep.  19 88 

Matter  of  Quinby  v.  Public  Serv- 
ice Commission 223  N.  Y.  244 343,  344 

Matter  of  Roberts 214  N.  Y.  369 294 

Matter  of  Rockefeller 117  App.  Div.  786-791 ;  223 

N.  Y.  563 76,  77,    78 

Matter  of  Romaine 127  N.  Y.  80 607 

Matter  of  Richards 182  App.  Div.  572,  575 508 

Matter  of  Sclmabel 202  N.  Y.  134 40 

Matter  of  Seaman N.  Y.  L.  J.,  Dec.  5,  1913. .  163 

Matter  of  Security  Trust  Co...  221  N.  Y.  213,  219.372,  373,  374 

Matter  of  Severance 106  Misc.  Rep.  710 378 

Matter  of  Shedd 60  Hun,  367 159 

Matter  of  Sherman 222  N.  Y.  540 167 

Matter  of  Shonte 229  N.  Y.  374,  378,  382. . .  379 

456,  461 

Matter  of  Slosson 216  N.  Y.  79 164 

Matter  of  Snook 2  Hilt.  566 479 

Matter  of  Steam 9  N.  Y.  Supp.  445 459 

Matter  of  Terry 218  N.  Y.  218,  223 165 

Matter  of  Thaw 182  App.  Div.  368,  372.  .22,    73 

Matter  of  Thayer 193  N.  Y.  430 509 

Matter  of  Tilden 98  N.  Y.  434 377,  378 

Matter  of  Tone 186  App.  Div.  363 205 

Matter  of  Totten 179  N.  Y.  112 363 

Matter  of  Townsend 215  N.  Y,  442 377,  378 


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xxxu  TABLE  OF  CASES  CITED. 

PAOI» 

Matter  of  Troy  Press  Co 94   App.   Div.    614;    affd., 

179N.  Y.  529 639 

Matter  of  Turner N.  Y.  L.  J.,  June  17, 1920. .  367 

Matter  of  VanderbUt 50  App.  Div.  246 ;  affd.,  163 

N.  Y.  597;  187  App.  Div. 

716 163,  366 

Matter  of  Vandewater 115  N.  Y.  669 83 

Matter  of  Vassar 127  N.  Y.  1, 12 363 

Matter  of  Village  of  Olean 135  N.  Y.  341 433 

Matter  of  Wall 76  Misc.  Rep.  106 369 

Matter  of  Wanninger 3  N.  Y.  Supp.  137 459 

Matter  of  Washboume 180  N.  Y.  Supp.  507;  affd., 

190  App.  Div.  940;  affd., 

229  N.  Y.  518 365 

Matter  of  Watson 215  N.  Y.  209,  211;  226  id. 

384,  401;  affd.,  U.  S.  Sup. 
Ct,  N.  Y.  L.  J.,  Dee.  11, 

1920 40,41,364,  366 

366, 367,  509 

Matter  of  Wentworth 230  N.  Y.  176 512 

Matter  of  Whiting 150  N.  Y.  27-30 507,  509 

Matter  of  Wiemann's  Estate...      179  N.  Y.  Supp.  190 363 

Matter  of  WUcox 194  N.  Y.  288 26 

Matter  of  Wilson 92  Hun,  318 155 

Matter  of  Wolfe 181  App.  Div.  35 456 

Matter  of  Wyckoff 67  Misc.  Rep.  1 86 

Matter  of  Zborowski 213  N.  Y.  109 166 

Matter  of  Zimmerman 110  Misc.  Rep.  295 365 

Matthews  v.  Brooklyn  Savings 

Bank    208  N.  Y.  508 363 

Mead  v.  Young 4  T.  R.  28 51 

Meekins  v.  Kinsella 152  App.  Div.  32 200,  202 

Meigs  V.  Roberts 162  N.  Y.  371,  378 148 

Mentz  V.  Newwitter 122  N.  Y.  491 355,  532 

Mertz  V.  Hubbard 75  Kan.  1 532 

Message  Photo  Play  Co.,  Inc.,  v. 

Bell 179  App.  Div.  13,  19,  20. . .  658 

Meyers  v.  Liebeskind 46  Misc.  Rep.  272 100 

Meyer  v.  Redmond 205  N.  Y.  478 531,  533 

Michaels  v.  Hillman 112  Misc.  Rep.  395 580 

Miller  v.  State  of  New  York 164  App.  Div.   522;   affd., 

223  N.  Y.  690 434 

Milliman  v.  Huntington 68  Hun,  258 356 

Mills  V.  Davis 53  N.  Y.  349 209 


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TABLE  OF  CASES  CITED.  xxxiu 

PAOB. 

Mills  V.  Hunt 20  Wend.  431-433 633 

Miners   &   Merchants'   Bank  y. 

Ardsley  Hall  Co 113  App.  Div.  194 10 

Mishkind  V.  Sidorsky 189  N.  Y.  402 377 

Mitchell  V.  Schroeder 94  Misc.  Rep.  270 562 

Monk  V.  Town  of  New  Utrecht.      104  N.  Y.  552 282 

Montwil  V.  Am.  Locomotive  Co.      169  N.  Y.  Supp.  21 415 

Monypeny  v.  Monypeny 202  N.  Y.  90 21 

Moore  v.  Harter 67  Ohio  St.  260,  254 516 

Moore  V.  HUlabrand 16  Abb.  N.  C.  477 700 

Moore  v.  St  Thomas  Church. . .      4  Abb.  N.  C.  51 '. .       9 

Morehouse  v.  Cooke 1  Hopk.  Ch.  226 83 

More  V.  Deyoe 22  Hun,  208,  223 398 

Mortimer  v.  Chambers 63  Hun,  335 297 

Mott  V.  Ackerman 92  N.  Y.  539 73 

Moultrie  V.  Hunt 23  N.  Y.  394 205 

Muhlenbrinck  v.  Pooler 40  Hun,  526 451 

Mundorff  v.  Wangler 57  How.  Pr.  372 294 

Munn  &  Co.  v.  Americana  Com- 
pany    L,  R.  A.  1916D,  116, 117. . .  525 

Munro  ▼.  State  of  New  York. . .  223  N.  Y.  208-214. . .  .247,  248 

249,  250,  253,  261 

Munro  V.  Tousey 129  N.  Y.  38,  41,  42 656 

Murdock  V.  Gould 193  N.  Y.  369 319 

Murphy  v.  Estate  of  Skinner. .      160  Wis.  554 54 

Murphy  v.  Holmes 87  App.  Div.  369 232 

Mutual  Life  Ins.  Co.  v.  Newell. .      78  Hun,  293 143 

N. 

Nash  V.  Wetmore 33  Barb.  155 692 

Nathan  v.   Woolverton 69  Misc.  Rep.  425 ;  affd.,  147 

App.  Div.  908 70 

National  Bank  of  Commerce  ▼• 

First  National  Bank 152  Pac.  Repr.  596 54 

National  Protective  Association 

V.  Cnmming 170  N.  Y.  315-324.. .  .186,  187 

190,  670 
Navarre  H  &  I.  Co.  v.  American 

Appraisal  Co 156  App.  Div.  795,  797 531 

Navratil  v.  Bohm 26  App.  Div.  460 61 

Nelson  v.  Kerr 59  N.  Y.  224 209,  210,  211 

New  York  Central  Iron  Works 

Co.  V.  Brennan 105  N.  Y.  Supp.  865-869. .  581 

New  York  Rubber  Co.  v.  Rothery      107  N.  Y.  310 287 

iii 


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xxxiv  TABLE  OF  CASES  CITED. 


0- 

Obecny  v.  Goetz 116  App.  Div.  807 206 

O'Beime  v.  Miller 35  Misc.  Rep.  337 61 

Obemdorf  v.  Farmers'  Loan  & 

Trust  Co 71  Misc.  Rep.  64 159 

O'Brien  v.  Neubert 3  Dem.  166 155 

O'Hara  v.  State  of  New  York. .      112  N.  Y.  146 250 

Olin  V.  Bate 98X11.63 479 

Oliver  Lee  &  Co.'s  Bank  v.  Wal- 

bridge 19  N.  Y.  136 6 

O'Neill  V.  General  FUm  Co 171  App.  Div.  854-867. ...  529 

O'Neilv.  State  of  New  York...      223  N.  Y.  40 271 

Osterhoudt  v.  Osterhoudt 48  App.  Div.  74,  77 83 

Ostrander  v.  Reis 206  N.  Y.  448,  464,  455. ...  150 

Oswego  &  Syracuse  R.  R.  Co.  y. 

State  of  New  York 186  N.  Y.  384;  affd.,  226 

N.  Y.  361 254 

Oswego  Starch  Factory  Co.  v. 

Dolloway  21  N.  Y.  449 59 

Otis  Steel  Co.,  Limited,  v.  Local 

Union  No.  218  of  Cleveland, 

Ohio  110  Fed.  Repr.  698 671 

P. 

Palmer  v.  State  of  New  York..  174  App.  Div.   933;  affd., 

220  N.  Y.  666 436 

Parker  v.  Bradley 46  N.  Y.  Super.  Ct.  244. ...  209 

Parucki  v.  Polish  National  Cath- 
olic    Church     of     the    Holy 

Mother  of  the  Rosary 177  N.  Y.  Supp.  206 7 

Peck  V.  HiDer 30  Barb.  666 692 

Pennoyer  V.  Neff 95  U.  S.  714 130 

People  V.  Cancemi 18  N.  Y.  128 66 

People  V.  Cosmo 205  N.  Y.  91 65 

People  V.  D'Argencour 95  N.  Y.  624 66 

People  V.  Glen 173  N.  Y.  396 63 

People  V.  Home  Ins.  Co 92  N.  Y.  328 608 

People  V.  Melvin 1  Yates  Sel.  Cas.  81 680 

People  V.  Mutual  Gas  Light  Co.      74  N.  Y.  434,  436 171 

People  V.  N.Y.  C.  R.  R.  Co....      24  N.  Y.  486 244 

People  V.  New  York  &  Manhat- 
tan Beach  R.  Co 84  N.  Y.  669 38 

People  V.  Rathbun 21  Wend.  509 66 


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TABLE  OF  OASES  CITED.  xxxv 

People  V-  Sharp 107  N.  T.  427 134 

People  y.  Toledo 150  App.  Div.  403 65 

People  V.  Tweed 6  Hun,  382,  389 476 

People  V.  Van  Rensselaer 9  N.  Y.  330,  334 611,  616 

People  V.  Weser N.  Y.  L.  J.,  Dec.  3,  1919. .     38 

People  V.  Wiechers 179  N.  Y.  459 65 

People  V.  Willett 213  N.  Y.  368,  375 64 

People  ez  rel.  Adams  y.  West- 
brook  61  How.  Pr.  138 294 

People  ex  rel.  Ajas  y.  Board  of 

Education   104  App.  Div.  162,  164 659 

People  ez  rel.  Alpha  P.  C.  Co. 

V.  Knapp 230  N.  Y.  48 508 

People  ez  reL  Bank  of  New  York 

V.  Board  of  Supervisors,  etc. .     , 37  N.  Y.  21,  23 421,  422 

People  ez  rel.  Beck  v.  Coler. ...      34  App.  Div.  167 224 

People  ez  rel.  Boenig  v.  Hege- 

man.  220  N.  Y.  118 148 

People  ez  reL  Bolton  v.  Albert- 
son   55  N.  Y.  55 243 

People  ez  rel.  Brush  v.  Brown. .      20  Wkly.  Dig.  516 83 

People  ez  reL  Burbj  v.  Howland      155  N.  Y.  280 244 

People  ez  rd.  Duffy  v.  Gilchrist.  N.  Y.  L,  J.,  Aug.  16,  1919; 

affd.,  190  App.  Div.  898.  658 
People  ez  reL  Durant  Land  Imp. 

Co.  V.  Jerohnan 139  N.  Y.  14,  17 659 

People  ez  rel.  Empire  City  Trot- 
ting   Club    V.    State    Racing 

Comm.   190  N.  Y.  31,  33,  34 658 

People  ez  rel.  Faile  v.  Ferris. .      76  N.  Y.  329 217 

People  ez  reL  Garrison  v.  Nixon.      229  N.  Y.  575,  586 343,  345 

People  ez  reL  Gas-Light  Co.  v. 

Common  Council 78  N.  Y.  56 217 

People  ez  reL  Gnidct  v.  Green. .      66  Barb.  630 225 

People  ez  rel.  Hatch  v.  Reardon.  184  N.  Y.  431,  449;  affd., 

204  U.  S.  152,  162... 507,  509 

People  ez  reL  Jackson  y.  Potter.  42  How.  Pr.  260,  261,  262, 

270;affd.,  47N,Y.  375..     80 
People  ez  reL  Knick.  Press  v. 

Barker 87  Hun,  341 59 

People  ez  reL  Lentilhon  v.  Coler.  61  App.  Div.  223;  168  N. 

Y.    6 224,  225 

People    ez   reL    McClelland    v. 
DowUng 55  Barb.  197 217 


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xxxvi  TABLE  OF  CASES  CITED. 

People    ez    rel.    McMaekin    v. 

Police  Commissioners 107  N.  Y,  235 217 

People  ex  rel.  Met.  St  Ry.  Co. 

V.  Tax  Commissioners 174  N.  Y.  434,  437. , 510 

People  ex  rel.  Mizpah  Lodge  ▼. 

Burke 228  N.  Y.  245 126,  128 

People  ex  rel.  Onondaga  County 

Savings  Bank  v.  Butler 147  N.  Y.  164,  168,  169. ...     80 

People  ex  rel.  Palmer  v.  Travis.       223  N.  Y.  150 433,  435 

People  ex  rel.  Pruyne  v.  Walts. .       122  N.  Y.  238 83 

People  ex  rel.  Wall  &  Hanover 

St  Realty  Co.  v.  Miller 181  N.  Y.  328 74,  508 

People  ex  reL  WiUiams  v.  Day- 
ton         55N.Y.374 257 

People  ex  rel.  Wood  v.  Assessors.      138  N.  Y.  201,  204 659 

People  ex  rel.  Wynn  v.  Grifen- 

hagen  167  App.  Div.  572 607 

Peoples  Bank  v.  St  Anthony's 

R.  C.  Church 109  N.  Y.  612 9 

Perkins  v.  Stimmel 114  N.  Y.  359 297 

Peterson  v.  Martino 210  N.  Y.  412. 149 

Pettibone  v.  United  SUtes 148  U.  S.  197 678 

Pflum  V.  Spencer 123  App.  Div.  742 451 

Pfotenhauer  v.  Brooker 52  Misc.  Rep.  649 378 

Phillips  V.  Tietjen 108  App.  Div.  9 65 

PhUHps  V.  Wheeler 2  Hun,  603 ;  affd.,  67  N.  Y. 

104 209,211,212 

Pierce    v.    Stablemen's    Union, 

Local,   etc 156  Cal.  70 671 

Pierson  v.  People 79  N.  Y.  424 66 

Pluck  V.  Digges 2  Dow  &  C.  180 615 

Price  V.  Mulford 107  N.  Y.  303 140 

Pritchard  v.  Hirt 39  Hun,  380 398 

Pope  v.   Hart 36  Barb.  636 398 

Pope  V.  Terre  Haute  Car  &  Mfg. 

Co 107  N.  Y.  61 381 

Post  V.  Kearney 2  N.  Y.  394 541 

Post  V.  Moore 181  N.  Y.  15 305 

Q. 

Quayle  v.  State  of  New  York. .      192  N.  Y.  47,  51 499 

Quinto  V.  Alexander 123  App.  Div.  1 648 


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TABLE  OF  CASES  CITED.  xxxvii 


R. 

Railroad  Company  v.  Peniston. .      18  Wall  5 423 

Randolph  v.  Field 84  Misc.  Rep.  403 322 

Rapelye  v.  Prince 4  Hill,  125 692 

Raven  v.  Smith 87  Hun,  90 443 

Reardon,  Ine.  v.  Caton 189  App.  Div.  501 680,  681 

Reardon  v.   International   Mer- 
cantile Marine  Co 189  App.  Div.  515 680,  681 

Reed  v.  Reed 106  Misc.  Rep.  85 199 

Reinertsen  v.  Erie  R.  R.  Co 66  Misc.  Rep.  229 708 

Reisfdd  v.  Jacobs 107  Misc.  Rep.  1 329 

Reithman  v.  Brandenburg 7  Colo.  480 516 

Rexford  V.  State  of  New  York. .      105  N.  Y.  229 278 

Rice  V.  Manley 66  N.  Y.  82 186 

Rice  V.  Ontario  S.  B.  Co 56  Barb.  387 4 

Ridden  v.  ThraU 125  N.  Y.  572,  579 487,  488 

Riglander  v.  Star  Company 98  App.  Div.  101;  affd.,  181 

N.  Y.  531 707 

Ring  V.  City  of  Cohoes 77  N.  Y.  83 279 

Roberson  v.   Rochester  Folding 

Box  Co 171N.Y.538 479 

Robert  v.  Coming 89  N.  Y.  225,  235 25 

Roberts  v.  Hayward 3  Car.  &  P.  432 516 

Roberts  v.  State  of  New  York. .      160  N.  Y.  217 496 

Robin  V.  Colaizzi 101  Misc.  Rep.  298 69 

Robinson  v.  Ball 187  App.  Div.  799 402 

Robinson  v.  Pay 19  N.  Y.  Supp.  120 443 

Robinson  v.  Robinson 146  App.  Div.  533 701 

Rogers  v.  Patterson 79  Hun,  483 296 

Rolker  v.  Great  Western  Insur- 
ance Company 4  Abb.  Ct  App.  Dec.  73. . . .  699 

Romaine  v.  Van  Allen 26  N.  Y.  309 700 

Rommel  v.  Schambacher 120  Penn.  St.  579,  582 178 

Roseboom  v.  Roseboom 81  N.  Y.  359 304 

Rosenberg  v.  Haggerty 189  N.  Y.  485 688 

Rosenblatt  v.  Josephson 172  N.  Y.  Supp.  719 706 

Rossie  Iron  Works  v.  Westbrook.      59  Hun,  345 59 

Round  Lake  Assn.  v.  Kellogg. . .  20  N.  Y.  Supp.  261;  affd., 

141  N.  Y.  348 9 

Rourke  v.  Elk  Drug  Co 75  App.  Div.  145 576,  677 

Rouse  V.  Payne 120  App.  Div.  667 297 

Rothbarth  v.   Herzf eld... ......  179  App.   Div.   865;   affd., 

223  N.  Y.  578 695 


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xxxviii         TABLE  OF  CASES  CITED. 

Rnssell  v.  Prudential  Insurance 

Co 176  N.  Y.  178 474 

Ryanv.Dox 34  N.  Y.  307 411,  412 

s. 

Salen  v.  Bank  of  the  State  of 

New  York 110  App.  Div.  636 63 

Salisbury  v.  Slade 160  N.  Y.  278 72 

Sak>mon  v.  Salomon 101  App.  Div.  588 703 

Sanderson  v.  Morgan 39  N.  Y.  231 695 

Sands  v.  St  John 36  Barb.  24 567 

Sands  V.Waldo 100    Miso.    Rep.    288,   293, 

294  304 

Saratoga  County  Bank  v.  Pruyn.      90  N.  Y.  260 160 

Saunders  v.  Hanes 44  N.  Y.  353 619 

Saxe  V.  Penokee  Lumber  Co 159  N.  Y.  371 332 

Searff  V.  Metcalf 107  N.  Y.  211 589 

Schenectady      Observatory      v. 

Allen    42N.Y.404 244 

Schmidt  v.  Gunther 5  Daly,  452-453 576 

Schmidt  v.  Simpson 204  N.  Y.  434,  438 537 

Schuyler  v.  Smith 61  N.  Y.  308,  309 450,  516 

Schwarz  V.  Regensburg  &  Son..  168  App.   Div.  903;  affd., 

223  N.  Y.  521 415 

Schwartz  v.  Schwartz 113  Misc.  Rep.  444 348 

Scofield  V.  Day 20  Johns.  102 4 

Scott  V.  Rogers 31  N.  Y.  676 700 

Seaboard  National  Bank  v.  Bank 

of  America 193  N.  Y.  26 61 

Seely  v.  Seely 164  App.  Div.  652 150 

Selig  Polyscope  Co.  v.  Unicom 

Film  Service  Corp 163  N.  Y.  Supp.  62 524 

Seymour  v.  Wilson 14  N.  Y.  567 397 

Seymour  v.  Wyckoff 10  N.  Y.  213 699 

Sharot  v.  City  of  New  York 177  App.   Div.   869;   affd., 

226  N.  Y.  679 279 

Sheldon  v.  Button 6  Hun,  110 489 

Sheldon  v.  Lake 9  Abb.  Pr.  N.  S.  306 406 

Sheldon  v.  Stryker 27  How.  Pr.  387 692 

Shepard  v.  Oakley 181  N.  Y.  339 217 

Sherin  Special  Agency  v.   Sea- 
man          49  App.  Div.  33 601 

Sherman  v.  Com  Exchange  Bank      91  App.  Div.  84 63 

Sherman  v.  Pullman  Co 79  Misc.  Rep.  52 68 


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TABLE  OF  CASES  CITED.  xxxix 

PAOB. 

Simpson  ▼.  Jersey  City  Aiiitract^ 

ing  Co 165N.T.193 507 

Sioux  Remedy  Co.  v.  Cope 235  U.  S.  197 552 

Sipple  V.  State  of  New  York. . .  99  N.  Y.  285,  287,  288.  .428,  499 

Skolny  v.  Hillman 114  Misc.  Rep.  571 667 

Slater  v.  United  Traction  Co. . . .      172  App.  Div.  404 402 

Slingerland  v.  Corwin 105  App.  Div.  310,  311 568 

Smith  V.  Cheeebrough 176  N.  Y.  317 22,    73 

Smith  V.  Clews 114  N.  Y.  190 536 

Smith  V.  Fleischman 23  App.  Div.  355 443 

Smith  V.  Finkelstein 162  App.  Div.  128 319 

Smith  V.  littiefield 51  N.  Y.  539 450 

Smith  V.  People 47  N.  Y.  330,  339 80 

Smith  V.  Beetor 107  N.  Y.  610,  619 318 

Smith  V.  Smith 2  Dem.  43 82 

Smith  V.  State  of  New  York. ...      227  N.  Y.  405 278,  445,  495 

497,  500 

Smith  V.  U.  S.  Casualty  Co 197  N.  Y.  420,  428 479 

South¥dck  V.  First  Nat.  Bank  of 

Memphis   84  N.  Y.  420,  429 571 

Spanedda  v.  Murphy 144  App.  Div.  58 61 

Spencer  v.  Spencer 219  N.  Y.  469 91 

Squier  v.  Hanover  Fire  Ins.  Co.      18  App.  Div.  576,  578 475 

Standard  Steam  Specialty  Co.  v. 

Com  Exchange  Bank 84  Misc.  Rep.  445 « .  •     51 

Stanton  v.  Miller 58  N.  Y.  192 357 

Starkweather  v.  Kittle 17  Wend.  20 568 

State  of  Colorado  v.  Harbeck. .      189  App.  Div.  865,  872 164 

Steinhardt  v.  Baker 20  Misc.  Rep.  470 ;  affd.,  163 

N.  Y.  410 377 

Stein  V.  Empire  Trust  Co 148  App.  Div.  850 51 

Stephens    v.    Commissioners    of 

Palisades  Interstate  Park 108  Atl.  Repr.  645 429,  430 

Stem  &  Co.  V.  Avendon  &  Co., 

Inc Ill  Misc.  Rep.  372. . .  .515,  516 

Stevens  v.  City  of  New  York. . .      Ill  App.  Div.  562 515,  516 

Stevens  v.  Stevens 2  Dem.  469 294 

Stewart  v.  Long  Island  R.  R.  Co.      102  N.  Y.  601 541 

Stewart  v.  Stone 127  N.  Y.  500 326 

Storgard  v.   France  &   Canada 

S.  S.  Corporation 263  Fed.  Repr.  545 588,  589 

Strohmeyer  &  Arpe  Co.  v.  Guar- 
anty Trust  Co 172  App.  Div.  itf 706 

Snauv.  Caffe 122  N.  Y.  30^-320 160 


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xl  TABLE  OF  CASES  CITED. 

PAOB. 

Sultan  ▼.  Star  Co.,  Ine 106  Misc.  Rep.  43 578 

Swanson  v.  Cooke 45  Barb.  574 4 

Sweet  V.  Perkins 196  N.  Y.  482 279 

Syms  V.  City  of  New  York 105  N.  Y.  153 452 

T. 

TarbeU  v.  West 86  N.  Y.  288 15i 

Taylor  V.  Goelet 208  N.  Y.  253 382,  383 

Taylor  v.  Porter 4  HiU,  144 244 

Taylor  v.  Security  Mutual  Life 

Ins.    Co 73  App.  Div.  318 568 

Temperton  V.  Russell (1893)  1  <i.  B.  715 183 

The  BoukerNo.  2 241  Fed.  Repr.  831 588 

Thomas  v.  Scutt 127  N.  Y.  133 319,  320 

Thompson  v.  Goldstone 171  App.  Div.  666, 668.  .534,  536 

Thompson  v.  Town  of  Bath. ...      142  App.  Div.  331 279 

Tifft  V.  Porter 8  N.  Y.  516 374 

Town  of  Hancock 142  N.  Y.  510 280 

Town  of  Oyster  Bay  v.  Jacob. .      109  App.  Div.  615 33 

Townsend  v.  Townsend 2  Sandf.  711 160 

Trustees      Exempt      Firemen's 

Benev.  Fund  v.  Roome 93  N.  Y.  313 253 

Turner  v.  Fulcher 165  N.  Y.  Supp.  282 182 

Turner  v.  Scott 51  Penn.  St.  126,  134 486 

Tyson  v.  Bauland  Co 68  App.  Div.  310 407 

u. 

Uhlfelder  v.  Tamsen 15  App.  Div.  436 441 

Ulhnan  v.  Ullman 161  App.  Div.  419 83 

Union  Bag  &  Paper  Co.  v.  Allen 

Brothers'    Co 107  App.  Div.  529 626 

Union  National  Bank  v.  Chap- 
man       168  N.  Y.  538 335 

United  States  F.  &  G.  Co.  v. 

Carnegie  Trust  Co 161   App.   Div.   429 ;  affd., 

213  N.  Y.  629 441 

U.  S.  Radiator  Co.  v.  State  of 
New  York 208  N.  Y.  144,  148 509 

United  States  Realty  &  Imp.  Co. 
V.  Ewing 172  N.  Y.  Supp.  214 386 

Upton  Co.  V.  Flynn 169  App.  Div.  79 441 

Usher  v.  New  York  C.  &  H.  R. 

R.  R.  Co 76  App.  Div.  422;  affd.,  179 

N.  Y.  544 416 


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TABLE  OF  CASES  CITED.  xH 


V.  PAoa 

Van  Allen  ▼.  AsseasorB 3  Wall.  (U.  S.)  573 509 

Van  Rensselaer  v.  BaU 19  N.  Y.  100 610 

Van  Rensselaer  v.  Bonested. ...      24  Barb.  356 616 

Van  Rensselaer  v.  Bradley 3  Den.  135 616 

Van  Rensselaer  v.  Dennison. ...      35  N.  T.  393 617,  619 

Van  Rensselaer  v.  Qallup 5  Den.  454 616 

Van  Rensselaer  v.  Hays 5  Den.  477;  19  N.  Y.  68. . .  615 

616,  622 

Van  Rensselaer  t.  Jewett. .....      5  Den.  121 616 

Van  Rensselaer  t.  Jones 5  Den.  449 616 

Van  Rensselaer  v.  Read 26  N.  Y.  558,  563 617,  618 

Van  Rensselaer  v.  Roberts 5  Den.  470 616 

Van  Rensselaer  v.  Snyder 13  N.  Y.  299 616 

Vegelahn  v.  Guntner 167  Mass.  92 671 

Village  of  Carthage  v.  Frederick      122  N.  Y.  268 639 

Von  Der  Heyde  v.  Ditmars 174  App.  Div.  390 347 

w. 

Wade  V.  Town  of  Worcester 134  App.  Div.  51 282 

Waldron  v.  Schlang 47  Hun,  252 73 

Walker  v.  Mansfield : . .      221  Mass.  600 164 

Wallace  y.  International  Paper 

Co 53  App.  Div.  41 146 

Wallace  V.  McEchron 176  N.  Y.  424 147 

WaUer  v.  Degnon  Cont.  Co 120  App.  Div.  389 670 

Waller  v.  Town  of  Hebron 5  App.  Div.  577;  affd.,  17 

App.  Div.  158;  131  N.  Y. 

447   282 

Walsh  V.  Durkin 12  Johns.  99 130 

Warner  v.  Durant. ; 76  N.  Y.  133 25 

Ward  V.  Hasbrouck 169  N.  Y.  407 532 

Warmser  v.  Brown,  K.  &  Co 187  N.  Y.  87 70 

Warner  v.  People 2  Den.  272 244 

Waters,   Inc.    v.    Hatters'    Fur 

Exchange,  Inc 186  App.  Div.  803 708 

Watson  V.  Gugino 204  N.  Y.  535 269 

Watts  V.  Coffin 11  Johns.  496 616 

Weinberg  v.  Greenberger 47  Misc.  Rep.  117 559 

Weisberger   Co.    v.    Barberton 

Savings  Bank 84  Ohio  St.  21;  34  L.  R.  A. 

(N.  S.)  1101 52 

Wheeler  v.  Reynolds 66  N.  Y.  227,  236,  237 411 

Wheeler^Stenzel  Co.  v.  American 

Window  Glass  Co 202  Mass.  471 183 


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xUi     U.  S.  STATUTES  AT  LAtlGE  CITED. 


PAttl. 

•Wheeler  v.  State  of  New  York. .  190  N.  Y.  406 250,  253,  254 

Whipple  V.  Prudential  Ins.  Co.  •  222  N  Y.  30,  43 473,  474 

White  V.  Wager 25  N.  Y.  328 160 

White  V.  White 154  App.  Div.  250 703 

Wightman  v.  Schliefer 18  N.  Y.  Supp.  551 160 


Williams  v.  Guile 117  N.  Y.  343 

Wilson    V.    Tabernacle    Baptist 

Church 28  Misc.  Rep.  268. 

Wilson  V.  Wilson 158  III.  567 

Wilson  V.  Wright 9  How.  Pr.  459 

Windmuller  v.  Pope 107  N.  Y.  674. . . . 

Winfield  v.  Stacom 40  App.  Div.  95. . 


....  488 

....  10 
....  487 
....  212 
....  331 
....  442 

Winslow  V.  B.  &  0.  R.  R.  Co. . . .      188  U.S.  646 451 

Wolf  V.  Wolf 194  App.  Div.  33 183 

Wood  V.  Baker 43  Misc.  Rep.  310 201 

Wood  V.  Wood 26  Barb.  356 297 

Woods  V.  De  Piganiere. 1  Robt.  607,  610 169,  171 

Wooley  V.  Stewart 222  N.  Y.  347,  350 411 

Wright  V.  Weeks 25  N.  Y.  153 % 357 


T. 


Young  V.  City  of  Rochester. 


73- App.  Div.  81 271 


NEW  YORK  STATE  CONSTITUTION  CITED. 


FAOB. 

Const,  art.  Ill,  4  12 243 

Const.  1846,  art.  Ill,  4  17; 
amendt.  1874,  art.  Ill, 
J  23   637 

Const.  1846,  as  amd.  1874, 
art  III,    4  18. 637 

Const,  art.  Ill,  4  19. . .  .239,  240 
245,  246,  247,  252,  258,  263 


Const.  1894,  art.  Ill,  4  27.  637 

Const,  art  III,  (  28... 240,  243 

244,  246,  247,  250,  252,  262 

Const  art.  IV,  4  26 240. 

Const  art  VIII,  $  9 247 


UNITED  STATES  STATUTES  AT  LABGB 
CITED. 


39  U  S.  Stat  at  Large,  728. 


PAOI. 

.  67ft 


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CONSOLIDATED  LAWS  CITED.         xliu 


UNITED  STATES  REVISED  STATUTES  CITED. 


PAOB. 


V.  S.  B.  S.,  J  3701 420,  421,  423 


NEW  YORK  REVISED  STATUTES  CITED. 


PAOB. 

2  B.  S.  pt  2,  ch.  1,  tit  6, 
ft  1,2 609 

2  B.  S.  pt  3,  ch.  8,  tit  9, 
art  2,  i  1 618 


PAOI. 

2  R.  S.  620,  pt  3,  ch.  10, 

tit  2 502 

2R.  S.  J  59 703 


CONSOLIDATED  LAWS  CITED. 


Consolidated  Laws: 

chap.  6,  ii  50,  51 478 

chap.  13,  f  35 205,  693 

chap.  13,  i  30 204 

chap.  13,  J  47 13 

chap.  13,  i  101 295,  296 

chap.  14,  J  70 704 

chap.  14,  i  111  (3). 313,  314 

chap.  14,  i  113 314 

chap.  20,  i  345.134,  136,  137 

chap.  22,  i  15 551,  552 

chap.  22,  (  16 116,  552 

chap.  23,  $  34 8 

chap.  25,  H  3(2),  176..  445 

chap.  26,  i  176 278,  445 

chap.  33,  H  11,  13 441 

chap.  34,  i  7.. 266,  269,  270 

chap.   36 76 

chap.  38,  i  42 51 

chap.  38,  i  321 355 

chap.  40,  i  43 699 

ehap.  40,  f  62 698,  699 


Consolidated  Laws:  taqm. 

chap.  41,  J  15 512 

chap.  41,  J  43 536 

chap.  41,  J  85 329 

chap.  41,  f   100,  rule  4, 

subds.  1,  2 545 

chap.  41,  4  144(1) 645 

chap.  41,  H  145,  156.329,  330 

chap.  48,  4  5(3) 340 

chap.  49,  art.  IV 339 

chap.  49,  $  181.340,  341,  343 

chap.  50,  J  41 165 

chap.  50,  J  42 72 

chap.  50,  H  97,99 27 

chap.  50,  J  230 517 

chap.  50,  i  240 609 

chap.  50,  i  259 548 

chap.  50,  $  378(3) 720 

chap.  51,  i  5 585 

chap.  61,  art.   X 682 

chap.  59,  J  66 95 

chap.  60,  $  2(8) 420 


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xliv 


SESSION  LAWS  CITED. 


Consolidated  Lawa:  fiab. 

ehap.  60,  (  4(7) 125 

chap.  60,  i  12 420 

ehap.  60,  t  132.146,  147,  140 

chap.  60,  i  134 149,  150 

chap.  60,  H  181,182....  508 

chap.  60,  i  210 510 

ehap.  60,  i  220(2) 510 

ehap.  60,  (  220(3) 87 


Consolidated  Laws : 

chap.  60,  i  220(5) 312 

chap.  60,  i  220(6) 162 

chap.  60,  i  221 74 

chap.  60,  i  221-b....l67,  364 
366,  366,  367,  510 

chap.  60,  i  230 312,  368 

chap.  60,  fi  230,241.165,  166 


SESSION  LAWS  CITED. 


FAoa. 

1804,  chap.  31 635 

1805,  "  132  635 

1806,  "  146  636 

1807,  "  142  635 

1813,  "  65  636 

1817,  «  189  636 

1822,  "  127  634 

1822,  "  137  636 

1853,  "  578  640 

1854,  "  98  640 

1868,  "  191  640 

1875,  "  482 638 

1881,  **  132,  374,  570... 638 

640 

1884,  «  252,  H  4,  13.... 339 

340,  343,  344 

1884;  "  381  169 

1885,  ''     238  258 

1886,  "  65  339 

1890,  "  565,  art  IV.340,  344 

1895,  «  595  230 

1897,  "  284  312 

1900,  "  170,  (  1....427,  429 

1900,  "  170,  J  J  2,4,  5..  428 

1900,  «  726  250 

1906,  "  691  428 

1909,  "  7,  $39,266,  269,  270 

1909,  "  13,  J  47.... 714,  719 


1909,  chap. 

1909,  »* 

1910,  " 

1911,  " 
1911,  « 
1911,  " 

1911,  " 

1912,  « 

1913,  " 

1913,  « 

1914,  " 

1915,  " 
1915,  « 
1917,  « 
1917,  « 


1917, 
1918, 
1918, 
1919, 
1919, 
1919, 
1919, 
1919, 
1920, 
1920, 
1920, 
1920, 


30,4  74... 277,  278 

58,  4  35 270 

361  428 

509  687 

732  312 

746,  4  8.... 432,  433 

779  271 

648,  44  3,  7....  503 

230  563 

569  313 

15  429 

562  428,  429 

664,  4  220(2)..  508 

168  428 

472,44129,130.  713 
714 

700,  4  2 364 

569  269 

586  266 

177  269 

293,  4  36.. 204,  206 

469  260 

581  497 

627  368 

136  ....79,  80,  618 

138  617 

283  428,  429 

942  .,.92,  107,  397 


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CODE  OF  CIVIL  PROCEDURE  CITED.       xlv 


1920,  chap.  944 79,  80,  176 

517,  618,  519 
1920,     <'     944,  i  4 518 


PAOB 

1020,  chap.  945 79,    80 

1920,     "     947    517 

1920,     «     952    81 


CODE  OF  CIVIL  PROCEDURE  CITED. 


Code  of  Civil  Procedure,   paob. 
$264 279,  496,  498,  500 

♦  268 274 

♦  290 211 

1373 622 

♦  375 170 

♦  382(6)  140,  141 

♦  410 139 

♦  431(3)  561,  563 

♦  432(1)  116 

♦  435  563,  564 

♦  440 347 

J452 441 

♦  483 407 

i500 567 

♦  531 570 

♦  548 476 

♦♦560,675  475,  476 

♦  575 477 

♦  723 212 

♦  793 708 

♦♦797,802 348 

♦♦870,872 169,  171,  173 

♦  968 32 

♦  984  56,    56 

♦  1366 209 

♦  1504 632 

♦  1525   687,  688 

♦  1638,  art  5 684 

♦  1646  687,  688 

♦  1679  686,  686 

♦  1744 201 


Code  of  Civil  Procedure,      paob. 
♦♦1747,  1748 199,  200 

♦  1766  701,  702 

♦  1771 314,  702,  703 

♦  1836-a  21 

♦  1843 295 

♦  2231(l-a)  92 

♦  2233 31 

♦  2244 80 

♦  2490(6)  377 

♦  2610 42 

♦♦2510,2706 293 

♦  2560 379 

♦  2664 164 

♦  2665 164 

♦  2688  162,  164 

♦  2688(2)  162 

♦  2696 466 

♦♦2596,2597   456,  457 

♦  2615 71 

♦  2646 83 

♦  2649 86 

♦  2670.  .166, 167, 158, 169,  160 

♦  2671 156 

♦  2677 228 

♦♦  2680(2),  2681.  .229,  230,  231 

♦  2697 284 

♦  2731 '..40,  41,    42 

♦  2746 463 

♦  2763 379 

♦  3268   .  • .  .501,  502,  604,  505 


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xlvi  EULES  CITED. 

PENAL  LAW  CITED. 


Penal  Lav.  vam.  (  Penal  Iaw.  paob. 

♦  38 134         $41426,2036 37 

f  680(5)   3^    38 


UNITED  STATES  CRIMINAL  CODE  CITED. 


U.  S.  Criminal  Code,  4  37 «79 


MUNICIPAL  COURT  CODE  CITED. 


PAoa. 
Mun.  Court  Code,  H  21,  23 561,  662 


BULES  CITED. 


FAQB. 

General  Rules  of  Practice,  rule  XLVIII 61 


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MISCELLANEOUS  REPORTS 

OV  THK 

STATE   OK    NEAV  YORK 

OOMMSNCIMO  DBCEMBBR,  19&0. 


Theodore   Beyillon,   Plaintiff,   v.   Rod   A.   Demme, 

Defendant. 

(Supreme  Gonrt,  Kings  Special  Tesrm,  December,  1920.) 

KegotiablA  iastmmentB  —  promissory  notes  made  payable  in 
France*— when  loss  from  depreciation  of  French  money  is 
not  an  element  of  damage  —  rate  of  exchange —-  evidence. 

Where  at  the  time  certain  promissory  notes  given  for  the 
purchase  price  of  shares  in  a  French  corporation  and  made 
payable  in  France  in  francs,  both  of  the  parties  to  the  notes 
resided  in  that  country,  the  plaintiff  in  an  action  on  the  notes 
is  entitled  to  recover,  in  dollars,  the  amount  of  the  notes  com- 
puted at  the  rate  of  exchange  existing  when  the  action  was 
begun. 

It  was  defendant's  duty  when  sued  to  pay  the  amount  of 
the  notes  in  dollars,  and  he  will  not  be  permitted  to  take 
advantage  of  a  change  in  the  rate  of  exchange  in  his  favor 
by  withholding  payment. 

In  the  absence  of  proof  to  the  contrary  it  will  be  presumed 
that  the  law  of  France  is  similar  to  our  own,  and  therefore 
the  loss  from  depreciation  of  French  money  is  not  an  element 
of  damage,  the  only  damages  recoverable  for  non-payment  of 
the  notes  at  maturity  being  interest. 

Trial  by  the  court  without  a  jury  under  stipulation 
of  the  parties. 

Sparks,  Fuller  &  Strieker,  for  plaintiff. 

Austin,  McLanahan  &  Merritt,  for  defendant. 
1 


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BEVILLOiq   V.  DeMME. 


Supreme  Court,  December,  1920.  [Vol.  114. 

ScuDDER,  J.  By  the  stipulation  under  which  this 
case  is  heard  defendant  admits  the  second  caus^  of 
action  alleged  in  the  complaint,  and  the  sole  issue  to  be 
determined  by  the  court  is  the  correct  amount  of  the 
judgment. 

On  May  4,  1915,  in  Paris,  France,  plaintiff  and 
defendant  entered  into  a  written  agreement  for  the 
sale  and  purchase  of  certain  shares  of  stock  of  a 
French  corporation.  At  the  time  of  the  making  of  the 
agreement,  plaintiff  delivered  to  defendant  500  shares 
at  the  agreed  price  of  225,000  francs,  and  for  this 
amount  defendant  delivered  to  plaintiff  five  notes  due 
August  4,  1915. 

These  notes  were  not  paid  at  maturity,  and  the 
admitted  second  cause  of  action  alleged  in  the  com- 
plaint is  upon  them.  Except  as  to  amount  all  of  the 
notes  read  alike.  The  following  is  the  translation  of 
one  of  them: 

"  Pabis,  the  fourth  of  May,  1915.    B.  P.  F.  50,000. 

**  On  August  fourth,  nineteen  fifteen,  I  shall  pay 

against  this  note  to  Mr.  Theodore  Revillon,  living  in 

Paris,  Theirs  Street  No.  4,  the  sum  of  fifty  thousand 

francs  in  settlement  of  account. 

**  Note  for  fifty  thousand  francs. 
**  Rod  A.  Demme 
**  Paris,  11  Avenue  de  TOpera.''   [Tax  Stamp] 

By  the  stipulation  the  question  submitted  to  the 
court  }s  the  law  of  this  state  requires  the  amount 
of  the  judgment  in  dollars  to  be  computed  (1)  at 
the  par  rate  of  exchange,  or  (2)  at  the  rate  of 
exchange  at  the  maturity  of  the  notes,  namely,  August 
4,  1915,  or  (3)  at  the  rate  of  exchange  at  the  date  of 
the  commencement  of  the  action,  namely,  May  21, 1920, 
or  (4)  at  the  rate  of  exchange  at  the  date  of  trial 


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Rbvillon  v.  Demme. 


Misc.]  Supreme  Court,  December,  1920. 

and  entry  of  the  judgment,  which  by  the  stipulation 
shall  be  taken  to  be  as  November  16,  1920. 

It  is  further  stipulated  that,  for  the  purpose  of 
decision  and  determination  the  par  rate  of  exchange 
of  the  franc  shall  be  taken  to  be  5.18  francs  per  dollar, 
that  is  19.3  cents  per  franc,  and  that  the  rate  of 
exchange  on  the  several  dates  mentioned  shall  be 
taken  to  be  as  follows:  *'  On  August  4,  1915,  5.55 
francs  per  dollar,  that  is  18  cents  per  franc;  on  May 
21,  1920,  13.84  francs  per  dollar,  that  is  7.22  cents  per 
franc,  and  on  November  18,  1920,  17.10  francs  per 
dollar,  that  is  5.84  cents  per  franc. 

This  case  is  not  complicated  by  the  fact  that  the 
parties  at  the  time  when  the  contract  and  notes  were 
made  were  residents  of  different  countries,  and  there 
is  no  room  for  controversy  as  to  where  the  contract 
was  made  or  where  it  was  to  be  performed  and  the 
money  paid. 

Both  parties  to  the  contract  resided  in  France,  and 
the  notes  were  given  for  the  purchase  price  of  the 
shares  of  a  French  corporation,  and  were  made  pay- 
able in  France  in  the  current  money  of  that  country. 
The  facts  of  the  case  furnish  no  occasion  for  dis- 
cussion of  conflict  of  laws,  or  the  laws  governing  bills 
of  exchange,  or  the  laws  or  customs  of  merchants. 
The  case  presented  is  that  of  a  common  debt  con- 
tracted and  payable  in  France. 

It  seems  to  me  that  the  rule  as  to  the  measure  of 
damages  which  should  be  applied  in  such  case  is,  pay 
the  creditor  the  exact  sum  which  he  ought  to  have 
received  in  France. 

The  application  of  this  rule  to  the  present  case 
requires  the  court  to  render  judgment  for  such  sum 
of  dollars  as  will  be  equivalent  to  the  amount  of  prin- 
cipal and  interest  of  the  notes  in  francs  computed 
either  at  the  rate  of  exchange  at  the  time  of  the  com- 


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Bevillon  v.  Demmb. 


Supreme  Court,  December,  1920.  [Vol.  114. 

mencem^nt  of  the  action  or  the  rate  at  the  time  of 
judgment,  and  not  at  the  jpax  rate  of  exchange. 

To  compute  the  sum  due  at  the  par  rate  of  exchange 
would  be  in  effect  to  require  defendant  to  pay  in  gold, 
although  the  notes  were  not  made  payable  in  gold. 
Plaintiff's  loss  in  the  transaction  by  reason  of  the 
depreciation  in  French  money  did  not  arise  or  result 
from  defendant's  breach  of  his  contract  in  not  paying 
the  notes  when  they  became  due. 

The  general  rule  is  that  the  lex  loci  contractus,  and 
not  the  lex  fori,  governs  questions  as  to  the  elements 
and  amount  of  damages  recoverable  for  a  breach  of 
contract.  12  C.  J.  486.  In  this  case,  however,  it  is  to 
be  presumed,  in  absence  of  evidence  to  the  contrary, 
that  the  law  of  France  is  similar  to  our  own,  and  there- 
fore under  the  French  law  the  loss  from  the  deprecia- 
tion of  the  money  of  that  country  is  not  an  element 
of  the  recoverable  damages,  and  that  the  only  dam- 
ages that  may  be  recovered  for  nonpayment  of  money 
is  interest. 

Plaintiff  cites  in  support  of  his  contention  that  the 
amount  of  the  judgment  in  dollars  should  be  computed 
at  the  par  rate  of  exchange,  the  case  of  Martin  v. 
Franklin,  4  Johns.  124,  and  cases  in  which  that  case 
has  been  followed  in  the  lower  courts  of  this  state 
{See field  V.  Day,  20  Johns.  102 ;  Guiteman  v,  Davis,  45 
Barb.  576;  Swanson  v.  Cooke,  Id.  574;  Ladd  v.  Arkell, 
50  N.  Y.  Super.  Ct.  150,  155;  i2ice  v.  Ontario  8.  B.  Co., 
56  Barb.  387),  and  in  the  Massachusetts  courts 
{Adams  v.  Cordis,  8  Pick.  260;  Alcock  v.  Hopkins,  6 
Gush.  484;  Lodge  v.  Spooner,  8  Gray,  166;  Common- 
wealth V.  Haupt,  10  Allen,  38 ;  Burgess  v.  Alliance  Ins. 
Co.,  Id.  221).  The  ruling  of  the  court  in  Martin  v. 
Franklin,  supra,  is  sharply  criticized  by  Judge  Story 
in  Grant  v.  Healy,  10  Fed.  Gas.  978,  and  it  does  not 
seem  to  have  received  the  approval  of  the  Gourt  of 


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Bevillok^  v.  Demmb. 


Mise.]  Supreme  Court,  December,  1920. 

Appeals  of  this  state  in  Oliver  Lee  &  Co.'s  Bank  v. 
Walbridge,  19  N.  Y.  136. 

Neither  the  case  of  Martin  v.  Franklin,  nor  the 
other  cases  to  which  plaintiff  refers,  present  a  case 
like  the  one  now  before  the  court,  where  the  place  of 
residence  of  the  parties,  the  place  of  making  the  con- 
tract and  its  performance  are  all  in  one  country. 
These  cases  differ  so  materially  from  the  case  under 
consideration  that  an  extended  oon'sideration  of  them 
seems  unnecessary. 

As  between  the  rate  of  exchange  at  the  commence- 
ment of  the  action  and  the  rate  of  exchange  at  the  time 
of  judgment,  it  seems  to  me  that  the  rate  at  the  com- 
mencement of  the  action  is  the  proper  rate  to  be 
employed  in  computing  the  amount  of  the  judgment. 

The  notes  became  payable  in  dollars  upon  plaintiff's 
demanding  of  defendant  their  payment  in  this  state. 
The  conmienoemeut  of  the  action  was  equivalent  to 
such  a  demand  The  amount  due  in  dollars  depended 
upon  the  rate  of  exchange  existing  at  the  time  of  the 
demand  or,  in  this  case,  the  commencement  of  the 
action.  Under  the  law  of  this  state  it  was  the  defend- 
ant's duty  forthwith  upon  demand  to  pay  the  amount 
in  dollars,  and  he  should  not  be  permitted  to  take 
advantage  of  a  change  in  the  rate  of  exchange  in  his 
favor  by  withholding  payment. 

Plaintiff  is  entitled  to  interest  at  six  per  cent  from 
August  4,  1915,  the  date  when  the  notes  became  due, 
to  November  16,  1920,  the  stipulated  date  on  which 
judgment  is  to  be  regarded  as  entered,  and  to  have  the 
aggregate  sum  of  principal  and  interest  in  francs  con- 
verted into  dollars  at  the  rate  of  exchange  on  May  21, 
1920,  the  date  of  the  commencement  of  the  action, 
namely  13.84  francs  per  dollar. 

Judgment  for  plaintiff  for  $21,409.14. 

Judgment  for  plaintiff. 

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6      Paeucki  v.  Polish  National  Catholic  Chubch. 

Supreme  Court,  December,  1920.  [Vol.114. 


Michael  Parucki  and  Josefina  Parucki,  Respondents, 
V.  The  Polish  National  Catholic  Church  of  the 
Holy  Mother  of  the  Rosary,  Appellant. 

(Supreme  Court,  Erie  Special  Term,  December,  1920.) 

Kegotiable   instruments  —  lack    of    authority    in    oi&cors    of    a 
religious  corporation  to  irsne  notes  —  evidence. 

A  business  act  of  a  religious  corporation  must  be  shown  to 
have  been  duly  authorized  before  any  liability  therefor  will 
attach. 

A  promissory  note  purporting  to  have  been  made  by  a 
religious  corporation  organized  under  the  Laws  of  1813  can 
only  be  authorized  at  a  meetinp:  of  five  of  the  nine  trustees 
which  the  corporation  was  authorized  to  elect  each  year. 

Proof  that  such  a  note  was  signed  by  the  president,  secre- 
tary and  treasurer  of  the  corporation  does  not  show  that  it  is 
the  note  of  the  corporation  without  proof  that  it  was  made 
by  its  authority.  The  fact  that  not  all  of  the  nine  trustees  were 
acting  as  such  when  the  note  was  made  does  not  change  the 
requ'rement  that  five  trustees  were  necessary  to  constitute  a 
quorum. 

The  evidence  in  an  action  on  the  note  being  insufficient  to 
support  a  finding  that  it  was  authorized  by  the  board  of  trustees, 
and  the  record  on  appeal  from  a  judgment  in  favor  of  plain- 
tiff not  showing  that  defendant  received  the  money  represented 
by  the  note,  and  that  the  corporation  by  its  board  of  trustees 
never  admitted  its  liability  thereon,  the  judgment  appealed 
from  will  be  reversed  and  a  new  trial  ordered. 

Appeal  from  a  judgment  of  the  City  Court  of  Buffalo 
rendered  in  favor  of  plaintiffs. 

Henry  Adsit  Bull,  for  appellant. 

Alfred  L.  Harrison,  for  respondents. 

Laing,  J.  This  is  an  appeal  from  a  judgment  of  the 
City  Court  of  Buffalo  rendered  on  July  30,  1920,  for 
$1,252.80,  recovered  on  a  promissory  note  purporting 


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Paeucki  v.  Polish  National  Catholic  Chubch.    7 

Misc.]  Supreme  Court,  December,  1920. 

to  have  been  given  by  the  defendant  to  the  plaintiffs, 
dated  November  2,  1909,  for  $700. 

The  prior  judgment  in  favor  of  the  plaintiffs  was 
reversed  by  this  court.  Parucki  v.  Polish  National 
Catholic  Church  of  the  Holy  Mother  of  the  Rosary, 
177  N.  Y.  Supp.  206. 

The  note  was  signed  by  the  president,  secretary  and 
treasurer  of  the  defendant.  On  the  Thursday  evening 
preceding  the  date  of  the  note,  at  the  usual  time  and 
place  of  holding  meetings  by  the  trustees  of  the  defend- 
ant, at  least  four  trustees  met,  and  then  and  there  the 
action  was  taken  which  the  plaintiffs  contend  author- 
ized the  giving  of  this  note. 

On  the  former  appeal  it  was  assumed  that  five  trus- 
tees met  at  this  time,  but  it  was  held  that  no  action  was 
taken  by  them  as  a  board,  and  hence  that  the  note  was 
not  authorized. 

The  evidence  on  this  trial  discloses  more  fully  the 
action  taken  at  this  meeting,  and  the  trial  judge,  I 
think  rightly,  concluded  that  the  trustees  did  act  as  a 
board  in  such  a  way  as  to  make  their  action  valid. 

The  question,  however,  is  now  presented  as  to 
whether  or  not  there  was  at  this  time  a  quorum  of 
trustees.  The  defendant  was  incorporated  as  a  relig- 
ious corporation  under  the  Laws  of  1813,  and  the 
number  of  its  trustees  authorized,  and  each  year 
elected,  was  nine.  The  record  does  not  show  clearly 
the  number  of  trustees  in  October  and  November, 
1909,  but  it  does  indicate  that  not  all  the  trustees  were 
then  acting,  for  the  reason  that  at  that  time  there  was 
a  division  in  the  church.  The  evidence  upon  the  for- 
mer trial  as  to  the  number  of  trustees  at  this  particular 
meeting  was:  **  Q.  Who  was  present  at  that  meeting! 
A.  Simon  Zacholski,  Frank  Borowiak,  Bishop  Kamin- 
ski;  I  think  Ignatz  Gliczinski  was  there.  I  could  not 
say,  I  think  he  was  there.  Q.  Were  you  there  t  A« 
Yes,  sir/' 


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8      Pabucki  v.  Polish  National  Catholic  Chubch. 

Supreme  Court,  December,  1920.  [Vol.  114. 

This  evidence  was  repeated  upon  the  second  trial 
and  the  same  witness  also  testifies  as  follows:  ^^  Q. 
There  was  present  at  the  meeting  Simon  ZacholskiT 
A.  Simon  Zacholski  was  there.  Q.  Anybody  elset  A. 
The  secretary  and  Bishop  Kaminski.  Q.  Anybody 
else!  A.  The  treasurer,  Joseph  Siejak.  Q.  Anybody 
else!  A,  Frank  Borowski.  .Q.  Was  Ignatz  there! 
A.  I  didn't  see  him  that  time.  Q.  This  Simon  Zachol- 
ski was  president!  A.  Yes  *  *  *.  The  Court:  Q. 
How  many  were  there  at  that  meeting!  Mr.  Harrison : 
A.  Four.  Bishop  Kaminski,  Zacholski,  Siejak  and 
Borowiak.  Mr.  Harrison :  Q.  Do  you  know  positively 
what  people  were  there  that  night,  and,  if  so,  who  were 
they!  A.  Bishop  Kaminski,  Simon  Zacholski,  Joseph 
Siejak,  Frank  Borowiak.  Mr.  Harrison:  Q.  In  your 
last  testimony  you  said  that  Ignatz  might  have  been 
there.  Was  he  or  was  he  not!  A.  I  cannot  say  for 
positive  whether  he  was  or  not.*' 

The  evidence  on  the  former  trial  probably  permitted 
a  finding  that  five  trustees  were  present  at  this  meet- 
ing. That  finding  cannot  be  made  upon  the  record 
now  before  the  court.  The  trial  judge  apparently 
assumed  that  the  evidence  on  the  second  trial  was  not 
different  from  that  given  on  the  previous  trial.  Hence 
the  question  as  to  whether  or  not  there  was  a  quorum 
of  trustees  at  this  meeting  was  not  discussed  by  him. 
The  question  however  is  necessarily  involved  in  this 
appeal.  This  note  could  be  authorized  only  at  a  meet- 
ing of  five  trustees.  No  question  of  notice  of  the 
meeting  is  involved.  The  meeting  was  at  the  usual 
place  and  at  the  usual  time.  Those  facts  however  did 
not  permit  action  unless  a  quorum  was  present  at  the 
meeting. 

The  General  Corporation  Law  (§  34)  provides  that 
**  a  majority  of  the  board  of  directors  of  a  corporation 
at  a  meeting  duly  assembled  shall  be  necessary  to  con- 


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Parucki  v.  Polish  National  Catholic  Chubch.    9 

Misc.]  Supreme  Court,  December,  1920. 

stitute  a  quorum  for  the  transaction  of  business.'* 
The  decisions  are  in  accord  with  this  rule.  Moore  v. 
St.  Thomas  Church,  4  Abb.  N.  C.  51;  Ex  parte  WiU 
locks,  7  Cow.  402;  Round  Lake  Assn.  v.  Kellogg,  20 
N.  Y.  Supp.  261 ;  affd.,  141  N.  Y.  348 ;  Erie  R.  R.  Co.  v. 
City  of  Buffalo,  180  id.  197;  Cook  Corp.  §  713A. 

The  fact  that  not  all  of  the  nine  trustees  were  acting 
as  such  did  not  change  the  requirement  that  five  were 
necessary  to  constitute  a  quorum.  A  majority  of  the 
legal  number  is  required  to  hold  a  meeting.  Moore  v. 
St.  Thomas  Church,  4  Abb.  N.  C.  51;  Ex  parte  WiU 
locks,  7  Cow.  402;  Round  Lake  Assn.  v.  Kellogg,  20 
N.  Y.  Supp.  261;  Erie  R.  R.  Co.  v.  City  of  Buffalo,  180 
N.  Y.  197;  10  Cyc.  329;  Thomp.  Corp.  (Ed.  1895) 
§  3917;  Cook  Corp.  §  713A. 

The  fact  that  this  note  was  signed  as  it  was  does 
not  make  its  issuance  the  act  of  the  defendant.  Proof 
that  a  promissory  note  purporting  to  be  made  by  a 
corporation  was  signed  by  its  president  and  secretary 
does  not  show  that  it  is  the  note  of  the  corporation 
without  proof  that  it  was  made  by  its  authority.  Peo- 
ples Bank  v.  St.  Anthony's  R.  C.  Church,  109  N.  Y. 
512.  Even  if  it  be  held  that  such  proof  would  be 
prima  facie  evidence  that  the  note  was  authorized, 
such  a  holding  would  not  avail  here  because  full  proof 
was  made  by  the  plaintiffs  as  to  how  and  why  the  note 
was  given.  The  general  rule  is  that  a  recovery  cannot 
be  had  against  either  a  religious  or  business  corpora- 
tion, on  commercial  paper,  unless  the  evidence  war- 
rants a  finding,  not  only  that  the  paper  was  issued  by 
officers  of  the  corporation  but  that  its  issuance  was 
authorized  by  the  by-laws,  or  by  resolution  of  the 
board  of  directors,  or  by  a  course  of  dealing  by  which 
the  corporation  held  them  out  as  authorized  to  issue 
it,  and  would  be  deemed  estopped  from  questioning 
their  authority,  or  of  ratification  by  the  acceptance 


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1 0    Parucki  v.  Polish  National  Catholic  Chubch. 

Supreme  Court,  December,  1920.  [Vol.  114. 

and  retention  of  some  benefit  or  advantage  from  the 
unauthorized  act  or  otherwise.  Miners  <&  Merchants' 
Bank  V.  Ardsley  Hall  Co.,  113  App.  Div.  194.  As  to  a 
religious  or  other  corporation  not  engaged  in  business, 
a  business  act  which  charges  them  with  liability  must 
be  shown  to  have  been  authorized  before  the  liability 
will  attach.  Karsch  v.  Pottier  d  S.  Mfg.  &  Imp.  Co., 
82  App.  Div.  230,  233;  Miners  <&  Merchants'  Bank  v. 
Ardsley  Hall  Co.,  113  id.  194;  Kelley  v.  St.  Michaels 
R.  C.  Church,  148  id.  707.  Proof  that  the  defendant 
received  the  money  represented  by  this  note  might 
entitle  the  plaintiffs  to  recover  under  the  authority  of 
Wilson  V.  Tabernacle  Baptist  Church,  28  Misc.  Rep. 
268.  There  is  evidence  that  this  money  was  borrowed 
to  pay  the  interest  on  the  defendant's  mortgage,  and 
that  Bishop  Kaminski  announced  in  church  meetings 
that  this  note  was  one  of  the  defendant's  obligations. 
This  evidence  does  not  show  that  the  $700  was  used  to 
pay  the  interest  on  the  church  mortgage,  nor  does  the 
announcement  in  a  church  meeting  that  this  note  was 
a  church  obligation  and  the  acquiescence  of  the  con- 
gregation constitute  a  ratification.  Neither  the  priest 
nor  the  congregation  represented  the  defendant  in  a 
business  transaction.  The  board  of  trustees,  acting  as 
a  board,  alone  could  bind  the  defendant  by  a  contract 
or  by  an  admission. 

Having  reached  the  conclusion  that  the  evidence 
does  not  support  a  finding  that  the  note  in  suit  was 
authorized  by  the  board  of  trustees,  and  that  there  is 
no  evidence  in  the  record  that  the  defendant  received 
the  money  represented  by  the  note  and  that  the  defend- 
ant by  its  board  of  trustees  never  admitted  its  liability 
to  pay  the  note,  it  necessarily  follows  that  the  judg- 
ment appealed  from  must  be  reversed,  and  a  new  trial 
ordered,  costs  to  abide  the  event. 

Judgment  reversed  and  new  trial  ordered,  costs  to 
abide  event. 


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WOOLLBY    V.    HUTCHINS.  11 

Misc.]  Supreme  Court,  December,  1920. 


Clarence  M.  Woollbt,  Roland  J.  Hamilton  and 
Frank  M.  Peters,  as  Executors  and  Trustees  under 
the  Last  Will  and  Testament  of  John  B.  Pierce, 
Deceased,  Plaintiffs,  v.  Carrie  Eleanor  Hutchins 
et  al.,  Defendants. 

(Supreme  Court,  Erie  Trial  Term,  December,  1920.) 

Wills —constmction  of  — how  validity  of  a  testamentary  dis- 
position of  real  estate  in  this  state  by  a  non-resident  testator 
is  controUed  —  trusts  —  suspension  of  power  of  alienation  — 
corporations  —  power  of  sale  —  annuities  —  devise  —  vesting 
—  gifts  —  Decedent  Estate  Law,  §§  44,  45,  47  —  Real  Prop- 
erty Law,  §§  42,  61,  97,  99  —  Code  Civ.  Pro.  §  1836-a. 

The  validity  of  a  testamentary  disposition  of  real  estate  in 
this  state  by  a  non-resident  testator  is  controlled  by  section  47 
of  the  Decedent  Estate  Law.     (P.  13.) 

By  a  trust  created  by  the  will  of  a  non-resident  testator  who 
left  very  little  property  other  than  common  and  preferred 
stock  in  a  corporation  and  certain  unproductive  real  estate  in 
this  state  of  the  value  of  $150,000,  there  was  given  outright  to 
certain  designated  employees  of  the  corporation,  divided  into 
classes,  the  amount  of  property  which  the  testator  intended  they 
should  receive  at  his  death,  with  a  proviso  that  the  right  of 
any  employee  to  participate  in  the  distribution  of  the  principal, 
which  was  not  to  be  made  until  after  the  lapse  of  ten  years 
even  though  the  three  life  beneficiaries  died  long  prior  thereto, 
was  contingent  upon  such  employees  remaining  in  good  stand- 
ing in  the  active  employment  of  the  company,  its  successors  and 
assigns,  until  the  expiration  of  the  trust  period.  It  was  further 
provided  that  in  default  of  such  continued  employment,  the 
benefit  intended  for  such  employees  should  end  and  "  be  treated 
as  if  never  conferred  "  and  the  tesrtator  left  it  entirely  to  the 
officers  of  the  corporation  to  terminate  the  employment  of  any 
employee  and  made  the  action  of  said  officers  with  respect 
thereto  as  final  and  conclusive  as  a  voluntary  relinquishment  of 
employment.  The  trustees,  being  unable  to  dispose  of  the  real 
estate,  a  part  of  the  residuary  estate,  because  prospective  pur- 


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12  WOOLLEY    V.    HUTCHINS. 

Supreme  Court,  December,  1920.  [Vol.  114. 

chasers  question  whether  those  represented  by  the  trustees  take 
the  real  estate,  and  whether  if  the  heirs  of  testator  take  the 
remainder,  the  trustees  have  power  to  sell  the  real  estate,  bring 
this  action  under  section  1836-a  of  the  Code  of  Civil  Pro- 
cedure and  sections  44  and  45  of  the  Decedent  Estate  Law 
against  the  heirs  of  testator,  his  widow  and  his  former  wife 
for  a  construction  of  the  will,  and  it  is  conceded  that  the 
trust  is  void  under  the  statute  (Real  Property  Law,  §8  42,  61) 
providing  against  the  suspension  of  the  power  of  alienation 
for  a  longer  period  than  two  lives  in  being  and  forbidding  the 
accumulation  of  rents  and  profits  save  as  authorized  by  law. 
Held: 

That  the  remainder  did  not  vest  in  the  remaindermen  on  the 
death  of  the  testator  but  that  their  interests  were  cont^'n^^n-t, 
and  as  to  the  principal  were  intended  to  vest  onlv  .  • 
expiration  of  the  trust  period,  provided  that  in  the  me'i 
they  remained  in  the  active  employment  of  the  companv  1 
in  good  standing,  and  that  to  delete  the  invalid  provision  P 
the  will  and  declare  that  the  remainder  vested  in  the  empl'^ '  fs 
immediately  upon  the  death  of  the  testator  would  be  in  i''''^rt 
to  make  a  new  will.    (P.  25.) 

The  case  held  to  come  within  the  rule  that  where  there  is  not 
a  direct  devise  or  bequest  to  remaindermen  but  mere'v  a 
direction  to  executors  or  trustees  to  pay  over  to  or  divide 
among  a  class  at  a  future  time,  the  vesting  does  not  take  place 
until  the  arrival  of  that  time,  and  the  gift  is  contingent  upon 
survivorship  and  futurity  is  annexed  thereto.     (Id.) 

The  heirs  of  the  testator  took  the  real  estate  subject  to 
charges  thereon  for  the  payment  of  an  annuity  to  the  first 
wife  of  testator,  to  the  payment  of  his  debts  and  funeral 
expenses  and  inheritance  taxes  and  any  other  public  or  govern- 
mental charge  and  to  the  payment  of  money  legacies  given 
by  the  will  if  needed  therefor,  and  also  subject  to  the  exercise 
of  the  power  of  sale  conferred  upon  the  executors  and  trustees 
for  any  authorized  purpose.     (Pp.  26,  27.) 

While  the  attempt  of  testator  to  confer  authority  upon  his 
executors  and  trustees  to  sell  the  real  estate  for  the  purposes 
of  the  invalid  trust  falls  with  it,  yet  if  a  sale  of  the  real  estate 
be  necessary  to  render  effectual  any  of  the  valid  provisions  of 
the  will  or  to  enable  the  executors  and  trustees  to  perform  any 
of  their  duties,  they  are  authorized  to  sell  under  the  power 
of  sale,  which  under  sections  97  and  99  of  the  Real  Property 
Law  is  valid  as  a  power  in  trust,    (Pp.  Zl^  28.) 


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WOOLLBY    V.    HUTCHINS.  13 

Misc.]  Supreme  Court,  December,  1920. 

Action  for  the  construction  of  a  will. 

Sullivan  &  Cromwell  (Roy all  Victor,  John  W.  Van 
Allen,  Ralph  Royall  and  Miner  W.  Tnttle,  of  counsel), 
for  plaintiffs. 

Satterlee,  Canfield  &  Stone  (George  F.  Oanfield,  of 
counsel),  for  defendants  Fostena  Dickey,  Walter 
Berry,  Lester  Berry,  Leslie  Berry,  Linwood  Berry 
and  Gladys  Berry. 

Henry  Warren  Beebe,  for  Adelaide  Leonard  Pierce. 

Laughlin,  J.  This  is  an  action  brought  by  the 
executors  of  and  trustees  under  the  last  will  and 
testament  of  John  B.  Pierce,  deceased,  for  the  con- 
struction of  this  will.  The  testator  died  on  the  23d 
day  of  June,  1917,  a  resident  of  the  state  of  Massa- 
chusetts, leaving  a  last  will  and  testament  duly 
executed  on  the  15th  day  of  December,  1913,  and  a 
codicil  thereto  duly  executed  on  the  19th  day  of  May, 
1916.  The  will  was  duly  admitted  to  probate  in 
Massachusetts,  and  it  is  conceded  that  all  of  its  pro- 
visions are  valid  under  the  laws  of  that  state.  The 
testator  left  unproductive  real  estate  in  the  state  of 
New  York  of  the  value  of  about  $150,000,  the  validity  of 
the  disposition  of  which  is  controlled  by  the  laws  of 
this  state.  Decedent  Estate  Law,  §  47 ;  Hobson  v.  Hale, 
95  N.  Y.  588.  By  paragraph  I  of  the  will,  the  testator 
directed  that  his  debts,  funeral  expenses  and  every 
inheritance  and  governmental  charge  be  paid  out  of 
Ms  residuary  estate,  described  in  paragraph  XVII. 
By  paragraph  II  he  disposed  of  certain  personal  prop- 
erty and  real  estate  in  Massachusetts.  By  paragraphs 
ni-XVI,  inclusive,  with  the  exceptions  of  paragraphs 
X-XII,  he  gave  certain  cash  legacies  in  common  and 
preferred  stock  of  the  American  Radiator  Company 


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14  WOOLLEY    V.    HUTCHINS. 

Supreme  Court,  December,  1920.  [Vol.  114. 

to  his  wife,  to  his  two  half-sisters,  to  an  aunt,  to  five 
friends,  to  twenty-one  friends  and  relatives,  and  to 
designated  employees  of  the  American  Radiator  Com- 
pany. By  paragraph  X  he  gave  his  mining  claims 
and  property  in  Alaska,  and  debts  owing  to  him  there 
to  a  business  associate.  By  paragraph  XI  he  gave 
to  his  first  wife,  Mary  A,  Pierce,  from  whom  he  was 
legally  separated,  a  house  and  lot  occupied  by  her  in 
California,  and  a  cash  legacy  of  $300  per  month  for 
life,  and  directed  his  trustees  to  make  provision  there- 
for from  his  residuary  estate.  In  paragraph  XII  he 
set  forth  his  reasons  for  the  gifts  of  the  common  and 
preferred  stock  of  the  radiator  company  contained  in 
paragraphs  XIII-XVI,  and  for  the  provisions  speci- 
fied in  paragraph  XVII  in  their  behalf  provided  that 
they  should  be  living  at  the  expiration  of  the  trust 
period  of  ten  years  therein  specified,  or  upon  the 
death  thereafter  of  the  last  survivor  of  his  two  half- 
sisters  and  his  wife  should  they,  or  any  of  them,  be 
living  at  the  expiration  of  the  trust  period.  Those 
reasons  are  stated  to  be  that  his  business  career  had 
been  almost  wholly  identified  with  the  manufacture 
and  sale  of  heating  apparatus  and  appliances  and  that 
the  growth  of  the  business  had  been  gradual,  owing  to 
his  limited  means  at  the  outset,  but  that  by  applica- 
tion and  perseverance  it  grew  and  prospered  until  the 
organization  of  the  first  company  in  1892,  since  which 
time  it  has  been  largely  augmented,  and  that  this  was 
due  largely  to  the  fine  sense  of  honor,  high  quality  of 
integrity  and  conscientious  and  loyal  devotion  to  the 
performance  of  duty  by  his  business  associates  and 
to  the  development  in  the  business  organization  of  a 
splendid  spirit  of  co-operation  in  its  various  depart- 
ments and  among  its  employees  until  it  steadily 
advanced  the  business  operations  of  the  company 
throughout  this  and  foreign  countries,  and  that  grate- 


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WOOLLEY    V.    HUTCHINS.  15 

Misc.]  Supreme  Court,  December,  1920. 

fully  paying  tribute  to  his  co-workers  he  further  mani- 
fested his  appreciation  by  providing  tangible  benefit 
to  many  of  them  out  of  the  estate  which  they  had 
helped  to  expand  and  that  as  the  largest  part  of  his 
residuary  estate  will  consist  of  capital  stock  of  the 
radiator  company  he  felt  that  by  having  mutuality 
of  interest  between  his  wife  and  the  beneficiary 
employees  of  the  company  he  would  the  more  com- 
pletely secure  to  her  the  continuance  of  a  large  yearly 
income  sufficient  for  all  her  possible  requirements.  By 
paragraph  XIII  he  gave  to  each  of  eight  named 
employees  of  the  company,  provided  at  his  death  they 
should  be  in  the  active  employ  of  the  company,  thirty- 
tw^o  shares  of  the  common  stock,  and  described  them 
as  participants  in  Benefit  A.  By  paragraplis  XIV- 
XVI  he  gave  on  the  same  condition,  respectively,  to 
forty  other  named  employees  sixteen  shares  each  of 
the  common  stock,  to  sixty-one  other  named  employees, 
eight  shares  each  of  the  common  stock,  and  to  three 
hundred  and  nineteen  other  named  employees,  four 
each  of  the  common  stock,  and  described  them  as  par- 
ticipants in  ^*  Benefit  B,  Benefit  C  and  Benefit  D/* 
By  paragraph  XVII,  as  amended  by  the  codicil,  he 
gave  all  the  rest  and  residue  of  his  property  of  every 
name  and  description,  wheresoever  situate,  to  his  trus- 
tees, as  follows:  ^*  *  *  *  to  hold,  manage,  control,  in- 
vest, dispose  of  and  reinvest,  as  often  as  to  them  as  may 
seem  desirable,  in  order  to  keep  the  same  as  productive 
as  may  be  and  upon  the  further  trusts  to  hold  my 
estate  for  income  and  accumulation  for  the  period  of 
10  years  from  and  after  my  death  and  thereafter  until 
each  of  my  two  half-sisters,  EUie  P.  Watts  and  Mary 
B.  Bichardson,  and  also  my  wife,  Adelaide  Leonard 
Pierce,  have  died.  In  the  meantime  and  until  the 
expiration  of  aforesaid  ten  year  period  or  until  the 
decease  of  my  said  two  half-sisters,  Ellie  P.  Watts  and 


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16  WOOLLEY    V.    HUTCHINS. 

Supreme  Court,  Deeember,  1920.  [Vol.  114. 

Mary  B.  Richardson,  and  of  my  said  wife,  Adelaide 
Leonard  Pierce,  to  divide  and  distribute  the  income 
of  said  trust  estate  as  hereinafter  provided,  and 
finally  upon  the  death  of  my  two  half-sisters,  Ellie  P. 
Watts  and  Mary  B.  Richardson,  and  my  said  wife, 
Adelaide  Leonard  Pierce,  or  at  the  end  of  the  afore- 
said ten  year  period  in  case  this  should  extend  beyond 
all  of  said  three  lives,  to  divide  and  distribute,  sub- 
ject to  the  provisions  of  paragraph  ^  XI,'  the  principal 
of  said  trust  estate  in  manner  hereinafter  outlined.'* 
By  paragraph  XVIII  he  gave  the  trustees  power 
to  collect  rents,  income,  dividends  and  profits  arising 
from  the  trust  estate  and  to  sell  his  real  estate  at  pub- 
lic or  private  sale  and  to  subdivide  it  into  lots,  and 
this  power  was  also  conferred  with  respect  to  real 
estate  purchased  by  the  trustees,  and  power  to  lay  out 
streets  and  to  improve  real  estate,  and  to  lease  it,  and 
to  buy  or  sell  real  estate  or  to  change  realty  into  per- 
sonalty, and  personalty  into  realty,  and  to  invest  and 
reinvest  the  proceeds  in  realty  and  personalty;  and 
he  gave  them  power  to  administer  and  manage  the 
trust  estate  the  same  as  he  might  have  administered 
and  managed  it,  and  to  exercise  their  power  without 
obtaining  authority  from  any  court.  He  states  in 
paragraph  XIX  that  besides  the  income  for  his  wife 
and  half  sisters  he  shall  in  the  succeeding  paragraph 
make  provisions  for  income  from  and  create  partici- 
pating interests  in  the  final  distribution  of  the  resid- 
uary estate  for  the  considerable  number  of  the  radiator 
company  and  that  those  whom  he  desired  to  partici- 
pate therein  '*  are  the  employes  who  at  the  time  of 
my  death  will  be  rightful  legatees  "  under  para- 
graphs XIII  to  XVI  inclusive,  subject  to  later 
defeasance  for  either  of  the  limitations  or  conditions 
imposed  by  that  which  follows :  and  he  then  classifies 
them,  designates  them  as  ^'  Benefit  A,  B,  C  &  D  em- 


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WOOLLEY    V.    HUTCHINS-  17 

Misc.]  Supreme  Court,  December,  1920. 

ployes  ''  the  same  as  they  are  classified  in  the  said  last 
mentioned  paragraphs  of  the  will.  It  is  then  stated 
that  wherever  any  benefit  is  provided  for  or  conferred 
upon  any  employee  of  the  radiator  company, 
n  •  #  •  which  is  to  issue  from  and  ont  of  the  resid- 
uary estate,  it  will  be  understood  that  the  beginning 
of  as  well  as  the  continuation  of  the  enjoyment  of  such 
benefit  will  be  contingent  upon  such  employe  remain- 
ing in  good  standing,  to  do  which  it  will  be  necessary, 
first,  that  he  or  she  survives  me,  second,  that  he  or  she 
survives  the  period  when  any  particular  share  of  such 
benefit  will  mature  for  him  or  her  and,  third,  that  he 
or  she  continues  in  the  active  employ  of  said  American 
Badiator  Company,  its  successors  or  assigns,  until  the 
maturity  of  any  particular  accruing  share  of  the  ben- 
efit in  his  or  her  favor  meaning  and  intending,  that 
no  *  Benefit  A  *  employe,  no  *  Benefit  B  *  employe,  no 
*  Benefit  C  *  employe  and  no  *  Benefit  D  *  employe, 
whom  I  have  named  or  may  hereafter  designate  can  be 
regarded  as  in  good  standing  excepting  so  long  as  he 
or  she  meets  all  the  aforesaid  conditions.  Upon  the 
failure  of  either  of  which  the  benefit  shall  from  that 
instant  end,  and  pro  tanto  be  treated  as  if  never  con- 
ferred. The  termination  of  employment  with  said 
American  Radiator  Company  if  enforced  by  the  offi- 
cers of  said  Company  shall  be  conclusive,  final  and 
without  right  of  appeal  and  will  operate  with  like 
effect  as  the  voluntary  leaving  the  employ  of  the 
Company." 

By  paragraph  XX  he  directed  that  out  of  the  net  in- 
come of  the  trust  estate  the  trustees  pay  quarterly  of 
each  year  thirty  per  cent  to  his  wife,  five  per  cent  to 
each  of  his  half-sisters  and  that  the  remaining  sixty 
per  cent  should  constitute  a  fund  which  he  styled 
**  employees  fund,"  and  subject  to  the  limitations  of 
paragraph  XXXII  he  directed  that  it  be  distributed 
2 


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18  WOOLLEY    V.    HUTCHINS. 

Supreme  Court,  December,  1920.  [Vol.  114. 

among  the  four  classes  of  employees  who  should  be  in 
good  standing  at  the  particular  period  for  disburse- 
ment in  such  manner  that  the  members  of  class  **  A  *' 
should  receive  eight-fifteenths;  of  class  ^*  B  *'  four- 
fifteenths;  of  class  **  C  *'  two-fifteenths,  and  of  class 
**  D  '*  one-fifteenth.  In  that  paragraph  he  also  pro- 
vided that  on  the  termination  of  any  of  the  three  life 
interests  of  his  wife  and  half  sisters  the  share  of  in- 
come for  such  interest  should  fall  into  and  become  a 
part  of  the  employees*  fund  from  which  disburse- 
ments were  to  be  made  to  the  beneficiary  employees  in 
good  standing,  and  that  when  all  three  of  the  life 
interests  should  have  terminated  then  the  period  for 
final  distribution  to  the  employees  **  will  have  arrived, 
unless  it  be  in  abeyance  for  the  unexpired  portion  of 
the  ten  year  period  mentioned  in  paragraph  XVII.*' 
By  paragraph  XXXI  he  provided  that  when  the  time 
for  distribution  arrived  under  paragraph  XVII  the 
trust  estate  should  be  divided  subject  to  the  limitations 
of  paragraph  XXXII  and  of  the  provisions  of  para- 
graph XI. 

(<  •  •  #  among  the  employees  in  good  standing, 
who  are  then  members  of  Benefits  A,  B,  C  and  D,  in 
the  same  proportions  laid  down  by  me  for  the  division 
of  income,  namely,  each  member  of  *  Benefit  A  '  is  to 
receive  8  times  as  much  as  any  member  .of  *  Benefit 
.D.'  or  4  times  as  much  as  any  member  of  *  Benefit 
C  *  or  twice  as  much  as  any  member  of  *  Benefit  B.* 
Each  member  of  *  Benefit  B  '  is  to  receive  four  times 
as  much  as  any  member  of  *  Benefit  D,*  or  twice  as 
much  as  any  member  of  *  Benefit  C,*  or  one-half  as 
much  as  any  member  of  *  Benefit  A. '    Each  member  of 

*  Ben-efit  C  *  is  to  receive  twice  as  much  as  any  member 
of  *  Benefit  D,*  or  one-half  as  much  as  any  member  of 

*  Benefit  B  *  or  one-fourth  as  much  as  any  member  of 

*  Benefit  A/     Each  member  of  '  Benefit  D  *  is  to 


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WOOLLEY    V.    HUTCHINS.  19 

Misc.]  Supreme  Court,  Deconber,  1920. 

receive  one-half  as  much  as  any  memiber  of  *  Benefit 
C,'  or  one-fourth  as  much  as  any  memher  of  ^  Benefit 
B,'  or  one-eighth  as  much  as  any  member  of  *  Benefit 
A/  *'    That  paragraph  further  provides : 

**  Realizing  the  possibility  that  all  the  members  of 
one  or  more  of  said  four  classes  or  benefits  may  in 
consequence  of  death,  resignation  or  otherwise,  cease 
to  remain  in  good  standing  at  some  one  of  the  future 
periods  for  distribution  of  income  or  be  so  at  the  time 
set  for  final  division,  I  will  add  another  illustration, 
intended  not  to  show  a  different  method  of  division 
for  it  will  be  identical  with  the  one  heretofore  laid 
down  by  me  in  connection  with  the  division  of  income, 
but  given  solely  in  demonstration  of  the  rule's  appli- 
cation under  conditions  similar  to  those  described  for 
the  purpose  of  example  in  the  following: 

''  Five  Members  of  '  Benefit  A.' 

**  Twenty  Members  of  *  Benefit  C 

*'  Forty  Members  of  '  Benefit  D.* '' 

Further  assuming  that  the  value  of  the  estate  for 
distribution  is  $120,000,  the  division  would  result  in 
the  following: 

Total 

Each  of  the  5  members  of  *  Benefit  A  '  would 
receive  $8,000 $40,000 

Each  of  the  20  members  of  *  Benefit  C  '  would 

receive  $2,000    40,000 

Each  of  the  40  members  of  *  Benefit  D  '  would 

receive  $1,000    40,000 


$120,000 


**  It  will  be  apparent  that  the  foregoing  illustration 
applies  equally  well  in  the  case  of  division  of  income 
as  in  the  instance  of  final  distribution.'' 

By  paragraph  XXXII  as  amended  by  the  codicil 


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20  WOOLLBT    V.    HUTCHINS. 

Supreme  Court,  December,  1920.  [Vol.  114. 

he  limited  the  amount  of  annual  income  and  the 
amount  on  final  distribution  which  any  member  of  any 
class  should  receive.  By  paragraph  XXXIII  added 
by  the  codicil  he  directed  that  the  trustees,  in  case 
there  should  be  a  surplus  of  income  owing  to  the  limi- 
tation on  the  distributions  thereof  contained  in  para- 
graph XXXII  should  form  the  ''  John  B.  Pierce  Foun- 
dation "  and  he  specified  what  the  object  and  purpose 
thereof  should  be  and  provided  that  any  surplus  of 
the  corpus  of  the  trust  caused  by  the  limitations  with 
respect  to  the  distribution  thereof  should  go  to  the 
raid  foundation.  These  are  the  only  provisions  of  the 
will  deemed  by  any  of  the  parties  to  be  material  to  the 
points  presented  for  decision. 

It  is  conceded  that  the  trust  is  void  under  our  stat- 
utes providing  against  the  suspension  of  the  power  of 
alienation  for  a  longer  period  than  two  lives  in  being 
and  forbidding  the  accumulation  of  rents  and  profits 
save  as  authorized  (1  E.  S.  §§  14, 15;  Real  Prop.  Law, 
art.  3,  §§  42,  61),  for  the  reason  that  in  so  far  as  it 
fixes  the  period  at  ten  years  for  its  continuance  it  is 
not  limited  on  two  lives  iri  being  {Hone's  Exrs.  v.  Van 
Schaick,  20  Wend.  564;  Haynes  v.  Sherman,  117  N.  Y. 
433)  and  in  so  far  as  limited  to  the  lives  of  three  per- 
sons specified  it  suspends  the  absolute  power  of  aliena- 
tion, and  suspends  the  vesting  of  title  absolute  for 
more  than  two  lives  in  being. 

The  trustees  are  unable  to  dispose  of  the  real  prop- 
erty situate  in  this  state  for  the  reason  that  prospec- 
tive purchasers  question  whether  those  whom  the 
trustees  represent  take  the  real  estate,  which  owing  to 
the  sufficiency  of  the  personal  property  to  pay  the 
cash  legacies  is  part  of  the  residuary  estate,  and 
whether,  if  the  heirs  of  the  testator  take  the  remainder, 
the  trustees  have  power  to  sell  the  real  estate.  The 
real  estate  is  situate  in  the  counties  of  Erie  and  Niag- 


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WOOLLEY    V.    HUTCHINS.  21 

Misc.]  Supreme  Court,  December,  1920. 

ara,  and  the  plaintiffs  have  filed  in  the  offices  of  the 
clerks  of  these  counties  exemplified  copies  of  the  will 
and  probate  proceedings  in  Massachusetts.  The  trus- 
tees have  brought  the  action  on  the  authority  of 
Monypeny  v.  Monypeny,  202  N.  Y.  90,  and  section 
1836a  of  the  Code  of  Civil  Procedure  and  sections  44 
and  45  of  the  Decedent  Estate  Law  against  all  the 
heirs  of  the  testator  and  his  widow  and  his  former 
wife.  The  heirs  who  have  appeared  claim  that  para- 
graphs XVII-XX,  XXIII  and  XXVH  in  so  far  as  they 
affect  the  real  estate  in  this  state  are  void,  and  that 
with  respect  to  such  real  estate  the  testator  died  intes- 
tate and  his  heirs  inherited  it.  The  answer  of  the 
widow  of  the  testator  admits  all  the  allegations  of  the 
complaint  and  she  joins  with  the  plaintiffs  in  the 
prayer  for  relief.  The  income  derived  from  all  the 
property  has  never  been  sufficient  to  produce  an  excess 
of  income  beyond  the  maximum  amount  which  under 
the  will  and  codicil  the  employees  of  the  different 
classes  were  to  receive  and  the  John  B.  Pierce  Founda- 
tion has  never  been  formed.  The  testator  had  no 
dependents  or  relatives  in  whom  he  was  specially  inter- 
ested excepting  his  widow,  his  former  wife  and  his 
two  half-sisters,  who  were  of  about  his  age  and  chil- 
dren of  his  mother  by  a  second  marriage.  His  other 
relatives  were  descendants  of  children  of  his  father 
by  a  marriage  prior  to  that  with  his  mother,  and  with 
a  few  exceptions  he  merely  knew  of  their  existence. 
The  learned  counsel  for  the  plaintiffs  and  for  the 
widow  of  the  testator  contend  that  under  the  authority 
of  many  recent  decisions  of  the  Court  of  Appeals  and 
of  the  Appellate  Division  the  invalid  provisions  of  the 
will  with  respect  to  the  trust  may  be  deleted  and  that 
the  remainder  should  be  deemed  to  have  vested  upon 
the  death  of  the  testator  in  the  four  classes  of 
employees  who,  if  living  and  in  good  standing  in  the 


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22  WOOLLBY    V.    HUTCHINS. 

Supreme  Court,  December,  1920.  [Vol.114. 

service  of  the  company  at  the  termination  of  the  void 
trust  were  to  take  on  the  theory  that  it  plainly  appears 
from  the  provisions  of  the  will  that  the  testator  was 
primarily  interested  in  their  taking  the  property.  To 
apply  the  rule  to  the  case  at  bar  would  be  carrying  it 
far  beyond  any  of  the  authorities.  It  is  a  rule  that  has 
been  adopted  to  avoid  intestacy  in  whole  or  in  part, 
but  it  is  only  applied  where  it  is  consistent  with  the 
testamentary  plan  and  scheme  of  the  testator  as  shown 
by  the  will  and  ordinarily  its  application  is  confined  to 
wills  whereby  the  remaindermen  who  were  to  take  at 
the  expiration  of  the  period  of  the  invalid  trust  are 
definitely  specified  and  nothing  remains  for  them  to  do 
after  the  death  of  the  testator  as  a  condition  entitling 
them  to  take  and  where  the  trust  may  be  said  to  be  col- 
lateral to  the  desire  of  the  testator  that  the  remainder- 
men should  take.  Kalish  v.  Kalish,  166  N.  Y.  368;  Mat- 
ter of  Hitchcock,  222  id.  57 ;  Matter  of  Colgrove,  221  id. 
455;  Matter  of  Berry,  154  App.  Div.  509;  affd.,  209  N. 
Y.  540;  Matter  of  Thaw,  182  App.  Div.  368;  Chastain  v. 
TUford,  201  N.  Y.  338;  Hascall  v.  King,  162  id.  134; 
Brinkerhoff  v.  Seabury,  137  App.  Div.  916;  affd.,  201 
N.  Y.  559;  Smith  v.  Chesebrough,  176  id.  317;  Matter 
of  Butterfield,  133  id.  473.  In  the  case  at  bar,  how- 
ever, the  testator  gave  outright  upon  his  death  to 
thes'C  classes  of  employees  the  amount  of  property 
which  he  intended  they  should  then  receive  and  various 
provisions  of  the  will  clearly  show  that  he  did  not  intend 
that  they  should  participate  in  the  remainder  unless 
they  continued  in  the  service  of  the  company  in  good 
standing  until  the  time  for  distribution  arrived;  and 
the  only  apparent  purpose  of  the  ten-year  period  was 
as  a  probationary  period.  Final  distribution  was  not 
to  be  made  until  the  lapse  of  ten  years,  even  though 
the  three  life  beneficiaries  died  long  prior  thereto.  It 
is  argued  that  the  ten  year  trust  period  was  for  the 


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WOOLLEY    V.    HUTCHINS.  23 

Misc.]  Supreme  Court,  December,  1920. 

convenience  of  the  estate  and  the  plaintiffs;  but  that 
cannot  be  for  the  testator  had  very  little  property 
other  than  common  and  preferred  stock  in  the  radiator 
company.  I  appreciate,  of  course,  that  the  remainder- 
men although  divided  into  classes  are  all  named;  but 
while  if  the  remainders  were  vested  in  them  we  might 
accelerate  the  vesting  in  possessions,  I  think  that  rule 
may  not  be  applied  where  the  application  might  enable 
remaindermen  to  take  who  were  not  certain  of  taking 
ultimately  under  the  will  as  drafted.  I  am  of  opinion, 
therefore,  that  to  delete  the  invalid  provisions  of  the 
will  and  declare  that  the  remainder  vested  in  these 
employees  immediately  upon  the  death  of  the  testator 
would  in  effect  be  making  a  new  will  for  it  is  wholly 
problematical  as  to  whether  the  testator,  if  he  thought 
these  provisions  were  invalid,  would  have  given  the 
different  clas-ses  of  employees  the  entire  remainder  or 
any  part  of  it.  Moreover  it  will  be  seen  that  the  pro- 
visions of  paragraph  XVII  as  amended  by  the  codicil, 
which  are  the  only  provisions  under  which  the  different 
classes  of  employees  can  claim  as  remaindermen,  are  a 
direction  **  to  divide  and  distribute,  subject  to  the  pro- 
visions of  Paragraph  XI,"  which  relates  to  the 
annuity  of  the  former  wife  of  the  testator.  The  princi- 
pal of  the  trust  estate  he  directs  shall  be  divided 
and  distributed  **  in  manner  hereinafter  outlined," 
deferring  to  paragraph  XXXII,  which  places  a  specific 
limitation  on  the  amount  to  be  paid  over  to  each  of  the 
employees  of  the  different  classes.  It  will  thus  be  seen 
that  the  testator  did  not  intend  that  these  remainder- 
men in  any  and  ail  events  should  take  the  entire  princi- 
pal of  the  trust  estate  and  he  expressly  provided  in 
paragraph  XXXIII,  added  by  the  codicil,  that  any 
surplus  of  the  principal  of  the  trust  estate  left  after 
paying  to  each  remainderman  the  maximum  amount 
specified  in  paragraph  XXXII  as  amended  by  the 


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24  WOOLLEY    V.    HUTCHINB. 

Supreme  Court,  December,  1920.  [Vol.  114. 

codicil  should  be  paid  over  to  the  *'  John  B.  Pierce 
Foundation."  In  these  circumstances  the  court,  I 
think,  is  not  warranted  in  deleting  all  these  provisions 
with  respect  to  the  trust  and  declaring  that  the 
remaindermen  took  the  entire  principal  precisely  the 
same  as  if  the  testator  had  included  it  in  the  other 
absolute  legacies  to  them  immediately  on  his  death. 
The  learned  counsel  for  the  plaintiflfs  contend  that  the 
will  should  be  construed  as  vesting  the  entire 
remainder  which  the  testator  intended  as  a  trust  estate 
in  the  remaindermen  subject  only  to  be  divested  as  to 
any  of  them  dying  before  the  period  for  distribution 
or  failing  to  remain  an  employee  in  good  standing  until 
such  period.  1  think  that  is  not  the  true  construction 
of  the  will.  It  must  be  borne  in  mind  that  by  para- 
graph XIX  hereinbefore  quoted  the  testator  provided 
that  the  right  of  any  employee  to  participate  in  the  dis- 
tribution of  the  principal  was  contingent  upon  such 
employee  remaining  in  good  standing  as  an  employee 
and  continuing  in  the  active  employment  of  the 
radiator  company,  its  successors  or  assigns,  until  by 
the  expiration  of  the  trust  period  the  period  for  divi- 
sion and  distribution  should  arise  and  he  therein 
expressly  provided  that  in  default  of  that  the  benefit 
intended  for  such  employee  should  end  and  ^*  be  treated 
as  if  never  conferred  "  and  he  left  it  entirely  to  the 
officers  of  the  radiator  company  to  terminate  the 
employment  of  any  employee  and  made  their  action 
with  respect  thereto  as  final  and  conclusive  as  a  volun- 
tary relinquishment  of  the  employment  of  the 
employee ;  and  it  is  also  to  be  borne  in  mind  that  the 
testator  attempted  to  vest  the  title  to  the  trust  estate 
in  the  trustee  during  the  period  of  the  trust  with  full 
authority  to  sell  and  convey  and  to  invest  and  to  re- 
invest and  on  that  theory  the  absolute  power  of  aliena- 
tion would  not  have  been  suspended,    Robert  v.  Corn- 


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WOOLLEY    V.    HUTCHINS.  25 

Misc.]  Snpreme  Court,  December,  1920. 

ing,  89  N,  Y.  225,  235.  In  these  circumstances  I  am  of 
opinion  that  the  remainder  did  not  vest  in  the 
remaindermen  on  the  death  of  the  testator  but  that 
their  interests  were  contingent  and  as  to  the  principal 
were  intended  to  vest  only  at  the  expiration  of  the 
period  of  the  trust  provided  that  in  the  meantime  they 
remained  in  the  active  employment  of  the  company  and 
in  good  standing.  The  case,  I  think,  fairly  falls  within 
the  rule  that  where  there  is  not  a  direct  devise  or  be- 
quest to  remaindermen  but  merely  a  direction  to  execu- 
tors or  trustees  to  pay  over  to  or  divide  among  a  class 
at  a  future  time  the  vesting  does  not  take  place  until 
the  arrival  of  that  time  and  the  gift  is  contingent  upon 
survivorship  and  futurity  is  annexed  thereto.  Warner 
V.  Durant,  76  N.  Y.  133;  Delafield  v.  Shipman,  103  id. 
463;  Dougherty  v.  Thompson,  167  id.  472;  Davis  v. 
MacMahon,  161  App.  Div.  458;  affd.,  214  N.  Y.  614; 
Hennessy  v.  Patterson,  85  id.  91;  Booth  v.  Baptist 
Church,  126  id.  215.  If  the  testator  had  given  the 
entire  remainder  to  the  remaindermen  and  it  were  cer- 
tain that  identically  the  same  remaindermen  would 
take  at  the  expiration  of  the  trust  period  as  if  the  gift 
to  them  were  at  the  death  of  the  testator  then  the 
invalid  trust  might  be  deleted,  but  here  even  if  it  could 
be  held  that  the  remainder  vested  in  these  various 
employees  upon  the  death  of  the  testator  it  was  subject 
to  be  divested  by  death,  resignation  or  discharge 
from  the  employ  of  the  company  prior  to  the  time 
when  under  any  theory  of  construction  it  is  clear  that 
the  testator  intended  it  should  vest  in  them  in  posses- 
sion. Davis  V.  MacMahon,  supra;  Booth  v.  Baptist 
Church,  supra;  Cochrane  v.  ScheU,  140  N.  Y.  516; 
Knox  V.  Jones,  47  id.  389.  See,  also,  Matter  of  Butter- 
field,  supra.  The  learned  counsel  for  the  heirs  con- 
tends that  a  gift  of  a  remainder  which  is  vested  but 
limited  to  take  effect  at  the  expiration  of  an  invalid 


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26  WOOLLEY    V.    HUTCHINS. 

Supreme  Court,  December,  1920.  [Vol.  114. 

trust  is  void  and  he  cites  therefore  Knox  v.*  Jones, 
supra;  Matter  of  Wilcox,  194  N.  Y.  288,  but  he 
concedes  that  those  authorities  are  apparently  in  con- 
flict with  Matter  of  Berry,  154  App.  Div.  509;  aflfd.,  209 
N.  Y.  540,  and  he  endeavors  to  reconcile  Matter  of 
Berry,  supra,  with  the  former  decisions  on  the  ground 
that  the  remainderman  in  that  case  was  a  charitable 
corporation.  I  think  the  earlier  rule  has  been  modified 
by  Matter  of  Berry  to  the  extent  that  where  the 
remaindermen  are  definitely  fixed  and  would  neces- 
sarily be  the  same  at  the  expiration  of  a  void  trust  as 
at  the  time  of  the  death  of  the  testator  then  the  void 
trust  may  be  deleted  and  the  remaindermen  be  per- 
mitted to  take  in  instanter,  but  that  it  is  not  this  case 
for  here  the  remainders  were,  I  think,  contingent  and 
it  cannot  be  said  that  the  remaindermen  would  be  the 
same  at  the  time  the  testator  intended  they  should  take 
as  at  the  time  of  his  death  and  therefore  they  may  not 
be  permitted  to  take  by  deleting  the  invalid  provisions. 
Brinkerhoff  v.  Sedbury,  supra.  Manifestly  the  prim- 
ary purpose  of  the  testator  in  creating  the  invalid  trust 
was  either  to  put  the  employees  who  wer^  to  become 
remaindermen  on  probation  or  for  the  benefit  of  his 
widow  and  two  half-sisters.  If  for  the  benefit  of  the 
latter  then  such  primary  purpose  may  not  be  dis- 
regarded and  the  disposition  of  principal  as  well  as 
income  would  be  void ;  if  as  I  think  his  primary  pur- 
pose was  to  insure  the  continuance  of  the  remainder- 
men as  faithful  employee&  then  too  I  think  such  pri- 
mary purpose  may  not  be  disregarded  and  the 
employees  should  not  be  permitted  to  take  as  if  they 
had  complied  with  the  conditions  imposed  on  them  by 
the  testator  throughout  the  trust  period.  I  am,  there- 
fore, of  opinion  that  the  heirs  take  the  real  estate  of 
the  testator  situate  in  the  state  of  New  York  subject 
to  the  ohargea  thereon  for  the  payment  of  the  annuity 


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WOOLLEY    V.    HUTCHINS.  27 

Misc.]  Supreme  Court,  December,  1920. 

to  the  first  wife  of  the  testator  and  to  the  payment  of 
the  debts  of  the  testator  and  funeral  expenses  and  the 
inheritance  taxes  and  any  other  public  or  governmental 
charges  and  subject  to  the  payment  of  the  cash  legacies 
given  by  the  will  if  needed  therefor. 

The  remaining  question  is  as  to  whether  the  trustees 
have  a  valid  power  of  sale  under  which  they  may  con- 
vey good  title  to  the  real  estate.  It  was  competent  for 
the  testator  if  he  saw  fit  to  devise  his  real  property  to 
his  executors  and  trustees  for  the  purpose  of  sale  and 
that  would  be  valid  as  a  power  to  sell  even  though  he 
did  not  by  the  will  dispose  of  the  remainder  left  after 
the  payment  of  his  debts  and  funeral  expenses  or  other 
charges  and  where  he  creates  an  invalid  express  trust 
and  directs  or  authorizes  his  executors  or  trustees  to 
perform  an  act  which  may  be  lawfully  performed 
under  a  power  such  as  to  sell  his  real  estate  the  trust 
is  valid  as  a  power  in  trust.  Eeal  Prop.  Law,  §§  97,  99. 
The  provisions  of  the  will  are,  I  think,  sufficiently 
broad  to  authorize  the  executors  and  trustees  to  sell 
the  real  estate  of  the  testator  even  though  the  provi- 
sions with  respect  to  the  use  and  disposition  thereof  in 
so  far  as  it  concerns  the  trust  may  be  invalid.  It  is 
not  material  to  the  heirs  whether  the  executors  and 
trustees  are  empowered  to  sell  the  real  estate  for  they 
will  be  accountable  to  the  heirs  for  the  proceeds  there- 
of and  doubtless  it  would  be  much  more  convenient  to 
have  the  sale  made  by  them  than  by  the  heirs  who  are 
numerous  and  scattered  throughout  the  country.  In 
so  far  as  the  testator  attempted  to  devise  the  real 
estate  here  to  the  executors  and  trustees  in  trust  with 
authority  to  sell  in  order  to  carry  out  the  purposes  of 
the  invalid  trust  no  title  to  the  trust  estate  passed  to 
the  executors  and  trustees  and  the  attempt  to  confer 
authority  on  them  to  sell  the  real  estate  for  the  pur- 
poses of  the  invalid  trust  falls  with  the  trust.    Bene- 


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28  WOOLLET    V.    HUTCHINS. 

11.    II  -  I  ^ 

Supreme  Court,  December,  1920.  [Vol.  114. 

diet  V.  Webb,  98  N.  Y.  460;  Garvey  v.  McDevitt,  72 
id.  556 ;  Brewer  v.  Brewer,  11  Hun,  147 ;  aff  d.,  72  N.  Y. 
603 ;  Haynes  v.  Sherman,  117  id.  433 ;  Dana  v.  Murray, 
122  id.  604;  Allen  v.  Allen,  149  id.  280.  In  Chamber- 
lain V.  Taylor,  105  N.  Y.  184-194,  it  is  stated  that  the 
doctrine  of  equitable  conversion  only  applies  to 
property  validly  devised,  but  it  was  at  least  assumed 
in  Hobson  v.  Hale,  95  id.  588,  607,  that  it  may  obtain 
where  there  has  been  no  valid  disposition  of  the  prop- 
erty by  the  will. 

If,  however,  a  sale  of  the  real  estate  in  question  be 
necessary  to  render  effectual  any  of  the  valid  provis- 
ions of  the  will  or  to  enable  the  executors  and  trustees 
to  perform  any  of  their  duties,  then,  I  think,  they 
would  be  authorized  to  sell  under  the  power  of  sale. 
Chamberlain  v.  Taylor,  supra;  Asche  v.  Asche,  113 
N.  Y.  322.  No  actual  necessity  for  a  sale  for  the  pay- 
ment of  debts  or  funeral  expenses  or  legacies  has  been 
shown ;  but  it  appears  that  ancillary  letters  were  duly 
issued  to  the  executors  and  trustees  by  the  Surrogate's 
Court  of  Erie  county,  and  that  a  proceeding  was  duly 
instituted  to  determine  the  amount  of  the  transfer  tax 
on  the  real  estate  in  question  and  that  the  amount 
thereof  was  duly  determined  and  assessed,  and  it 
thereupon  became  the  duty  of  the  executors  and  trus- 
tees to  pay  it  and  they  did  so  prior  to  the  commence- 
ment of  this  action.  I  am  of  opinion  that  it  was  their 
duty  under  the  will  to  pay  the  transfer  tax  and  thai; 
for  that  purpose  they  were  authorized  by  the  power 
of  sale  contained  in  the  will  to  sell  the  real  estate  or 
any  part  thereof.  The  transfer  taxes  were  liens  on 
the  real  estate  and  equity  requires  that  the  plaintiff 
as  against  the  heirs  be  subrogated  to  the  lien  of  the 
state.  Title  to  the  real  estate  not  having  passed  under 
the  will,  but  having  vested  in  the  heirs  subject  to  the 
exercise  of  the  power  of  sale  for  any  authorized  pur- 


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WOOLLBT  V.   HUTCHINS.  29 

Misc.]  Supreme  Court,  December,  1920. 

pose,  the  proceeds  of  such  a  sale  not  required  for  the 
purpose  for  which  the  sale  was  made  would  necessarily 
still  be  deemed  realty,  and  the  title  of  the  heirs  would 
remain  unaffected  by  such  a  sale  excepting  by  being 
transferred  from  the  land  to  the  proceeds  of  the  sale. 
It  appears  that  the  plaintiffs  in  good  faith  took  charge 
of  this  real  estate  under  the  will  and  have  collected 
rents,  kept  buildings  in  repair  and  paid  all  taxes, 
insurance  and  other  charges  against  the  same.  In  so 
doing  they  have  expended  from  the  funds  of  the  estate 
many  thousand  dollars  more  than  they  have  received. 
No  heir  has  questioned  their  authority  and  control 
over  this  real  estate  and  it  is  reasonably  to  be  inferred 
that  all  the  heirs  have  acquiesced  therein.  In  the  cir- 
cumstances the  heirs  should  be  deemed  estopped  from 
claiming  that  such  expenditures  were  voluntarily 
made  by  the  plaintiffs  and  without  authority  under 
the  will. 

A  decree  may  be  prepared  construing  the  will  and 
power  of  sale  in  accordance  with  these  views  and 
adjudging  that  the  plaintiffs  are  authorized  under  the 
power  of  sale  to  sell  the  real  estate  and  reimburse  the 
estate  for  all  expenditures  so  mad'e  for  transfer  taxes, 
and  in  managing  the  real  estate  in  question,  together 
with  interest  thereon  and  for  the  payment  of  all  costs 
and  allowances  to  be  authorized  and  allowed  by  the 
decree  to  be  settled  on  notice,  and  authorizing  a  sale 
of  the  real  estate  in  question  by  the  plaintiffs  as  such 
executors  and  trustees  in  separate  parcels  to  the 
extent  necessary  to  satisfy  the  lien  for  the  transfer 
tax  and  the  lien  in  their  favor  which  will  be  given  by 
the  decree  for  their  expenses  and  disbursements  in 
handling  the  real  estate  and  the  costs  and  allowances 
that  will  be  provided  for  in  the  decree. 

Judgment  accordingly. 


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30  RzEPECKA  V.  Ubbanowski. 


Supreme  Court,  December,  1920.  [Vol.  114. 


Praksyda  Rzepecka,  Plaintiff,  v.  Michael  Urbanow- 
SKi,  Defendant. 

(Supreme  Court,  Erie  Equity  Term,  December,  1920.) 

Adjoining  owners  —  establishing  title  — when  lot  owner  cannot 
take  forcible  possession  of  a  disputed  strip  of  land  —  deeds  — 
injunctions  —  ejectment  —  Code   Oiv.  Pro.  §  968. 

A  lot  owner,  except  by  virtue  of  a  judgment  in  a  proper 
action  establishing  his  title,  cannot  take  forcible  possession  of  a 
disputed  strip  of  land  claimed  by  an  adjoining  lot  owner. 

Where  in  an  action  between  adjoining  lot  owners  on  a  city 
block  to  determine  the  title  to  a  strip  of  land  to  which  plaintiff 
claims  title  by  adverse  possession,  it  appears  that  the  prop- 
erties of  both  parties  are  about  two  feet  off  the  line  as  given 
in  their  respective  deeds,  a  permanent  injunction  will  be 
granted  restraining  the  defendant  from  moving  a  building  onto 
the  disputed  strip  after  he  had  torn  down  the  division  line 
fence. 

The  remedy  of  the  defendant  is  an  action  of  ejectment  in 
which,  under  section  968  of  the  Code  of  Civil  Procedure,  he, 
as  plaintiff,  would  have  the  right  to  have  the  issues  framed 
tried  by  a  jury. 

Action  to  establish  title  to  real  property. 

Henry  W.  Brush,  for  plaintiff. 

E.  D.  Vincent,  for  defendant. 

Wheeler,  J.  The  parties  to  this  action  own  adjoin- 
ing lots  fronting  on  Detroit  street  in  the  city  of  Buf- 
falo. It  would  appear  from  the  testimony  of  sur- 
veyors that  the  properties  of  practically  all  the  lot 
owners  in  the  block  in  question  as  actually  occupied 
by  them,  do  not  correspond  to  the  record  descriptions 
contained  in  their  deeds,  but  are  about  two  feet  off 
their  true  line.    This  seems  to  be  the  case  with  the 


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BZEPECKA  V.  UrBANOWSKI.  31 

— , tf 

Misc.]  Supreme  Court,  Deccriiljcr,  1920. 

plaintiff's  lot.  Nevertheless,  the  plaintiff  contends 
that  she  and  her  grantors  have  occupied  the  premises 
in  question  under  claim  of  title  for  upwards  of  twenty 
years^  and  have  thereby  acquired  title  by  adverse 
possession. 

There  has  stood  on  the  line  purporting  to  divide  the 
properties  of  the  plaintiff  and  defendant,  a  fence. 
Shortly  prior  to  the  commencement  of  this  action  the 
evidence  shows  the  defendant  tore  this  division  fence 
down,  and  started  to  move  a  building  upon  the  dis- 
puted strip.  Whereupon  the  plaintiff  procured  a  pre- 
liminary injunction  against  the  defendant  so  doing, 
and  on  this  trial  asks  for  a  permanent  injunction 
restraining  such  threatened  action  on  the  part  of  the 
defendant. 

We  think  the  plaintiff  entitled  to  the  judgment 
asked. 

Section  2233  of  the  Code  of  Civil  Procedure  pro- 
vides: **  An  entry  shall  not  be  made  into  real  prop- 
erty, but  in  a  case  where  entry  is  given  by  law ;  and, 
in  such  a  case,  only  in  a  peaceable  manner,  not  viitb 
strong  hand,  nor  with  multitude  of  people.  A  person 
who  makes  a  forcible  entry  forbidden  by  this  section, 
or  who,  having  peaceably  entered  upon  real  property, 
holds  the  possession  thereof  by  force,  and  his  assigns, 
undertenants,  and  legal  representatives,  may  bp 
removed  therefrom,  as  prescribed  in  this  title.'' 

This  statute  the  defendant  threatened  to  violate, 
and  to  take  the  law  into  his  own  hands  by  forcibly 
seizing  possess-ion  of  the  disputed  strip. 

If  the  plaintiff  disputed  the  defendant's  rights,  and 
that  she  did,  the  defendant's  remedy  was  to  appeal 
to  the  courts  by  an  action  of  ejectment  where  the 
legal  rights  of  the  parties  may  be  determined  by  law. 
The  plaintiff  in  such  an  action  has  the  right  to  have 


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32  BzEPECKA  V.  Urbanowski. 

Supreme  Court,  December,  1920.  [Vol.  114. 

the  issues  framed  tried  by  a  jury.    Code  Civ.  Pro. 
§  968. 

The  defendant  ought  not  to  be  permitted  in  advance  to 
become  judge,  jury  and  sheriff  in  his  own  case.  As  was 
said  by  Mr.  Justice  Miller  in  the  case  of  Iron  Moun- 
tain, etc.,  Rd.  V.  Johnson,  119  U,  S.  608,  611:    *'  The 
general  purpose  of  these  statutes  is,  that,  not  regard- 
ing the  actual  condition  of  the  title  to  the  property, 
where  any  person  is  in  the  peaceable  and  quiet  posses- 
sion of  it,  he  shall  not  be  turned  out  by  the  strong 
hand,  by  force,  by  violence,  or  by  terror.    The  party 
so  using  force  and  acquiring  possession  may  have  the 
superior  title  or  may  have  the  better  right  to  the 
present  possession,  but  the  policy  of  the  law  in  this 
class  of  cases  is  to  prevent  disturbances  of  the  public 
peace,  to  forbid  any  person  righting  himself  in  a  case 
of  that  kind  by  his  own  hand  and  by  violence,  and  to 
require  that  the  party  who  has  in  this  manner  obtained 
possession  shall  restore  it  to  the  party  from  whom  it 
has  been  so  obtained;  and  then,  when  the  parties  are 
in  statu  quo,  or  in  the  same  position  as  they  were 
before  the  use  of  the  violence,  the  p»arty  out  of  pos- 
fiion  must  resort  to  legal  means  to  obtain  his  posses- 
sion, as  he  should  have  done  in  the  first  instance.    This 
is  the  philosophy  which  lies  at  the  foundation  of  all 
these  actions  of  forcible  entry  and  detainer,  which  are 
declared  not  to  have  relation  to  the  condition  of  the 
title,  or  to  the  absolute  right  of  possession,  but  to 
compelling  the  party  out  of  possession,  who  desires 
to  recover  it  of  a  person  in  the  peaceable  possession, 
to  respect  and  resort  to  the  law  alone  to  obtain  what 
he  claims." 

We  do  not  in  this  case  undertake  to  determine  which 
of  the  parties  to  this  action  has  the  superior  title  to 
the  disputed  strip.  That  is  not  the  question  in  pro- 
ceedings for  forcible  entry  and  detainer.     In  such 


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People  v.  Zittel.  33 


Misc.]     Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920. 

Aases  the  plaintiff  must  succeed  even  though  the 
defendant  can  show  superior  title  or  right  of 
I)ossession.  Kelly  v.  Sheehy,  60  How.  Pr.  439;  Town 
of  Oyster  Bay  v.  Jacob,  109  App.  Div.  615. 

We  simply  decide  that  the  defendant  cannot  with- 
out the  judgment  of  the  court  in  a  proper  action  es- 
tablishing his  title  take  forcible  possession  of  the  dis- 
puted strip  of  land,  and  that  the  plaintiff  is  entitled  to 
the  judgment  of  this  court  restraining  such  acts  on 
the  defendant's  part. 

Judgment  accordingly,  with  costs  to  plaintiff. 


The  People  of  the  State  of  New  York,  Plaintiff,  v. 
Edwin  E.  Zittel,  Frank  M.  Zittel,  Elson  Freeze 
and  Philip  Katz,  Defendants. 

(Court  of  General  Sessions  of  the  Peace,  County  of  New  York, 
December,  1920.) 

Indictments  —  when  motion  to  dismiss  granted  —  what  constitntes 
a  criminal  conspiracy  —  landlord  and  tenant  —  evidence  — 
criminal  law  — Penal  Law,  §  580(5). 

To  constitute  a  criminal  conspiracy  it  must  appear  either 
that  the  parties  charged  therewith  agreed  to  commit  a  crime  or 
that  they  agreed  to  employ  criminal  means  to  accomplish  a 
lawful  end.     (P.  37.) 

Section  580(5)  of  the  Penal  Law  does  not  apply  to  real 
estate.    (P.  38.) 

A  landlord  who,  before  the  expiration  of  the  lease  and  in 
violation  thereof,  by  means  which  violate  no  then  existing  stat- 
ute, reenters  the  premises  in  the  absence  of  the  tenant,  to  make 
repairs,  is  a  mere  trespasser  and  commits  no  crime  by  such  act. 
(P.  37.) 

Where  on  motion  to  dismiss  an  indictment  charging  a  land- 
lord and  the  superintendent  of  an  apartment  house  in  the  city 
of  New  York  with  conspiracy  under  section  580(5)  of  the 
Penal  Law  it  appears  that  the  defendants,  in  entering  the 

3 


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34  People  v.  Zittel. 

Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920.     [Vol.  114. 

apartment  of  one  of  the  tenants  in  his  absence  for  the  pur- 
pose of  making  repairs,  were  not  guilty  of  an  unlawful  or 
forcible  entry,  the  motion  will  be  granted  on  the  ground  that 
there  was  no  legal  evidence  to  sustain  the  indictment. 

It  is  not  every  violation  of  a  legal  right  that  constitutes  a 
erime,  and  if  the  tenant  sustained  damage  b^'  reason  of  the 
act  of  defendants,  his  remedy  is  by  a  civil  action.     (P.  38.) 

Motion  to  dismiss  an  indictment. 

Edward  Swann,  District  Attorney  (Alfred  J.  Tal- 
ley,  Robert  S.  Johnstone,  Ferdinand  Q.  Morton,  As- 
sistant District  Attorneys,  of  counsel),  for  the 
People. 

William  H.  Chorosh,  for  defendant  Katz. 

Frederick  J.  Groehl,  for  defendants  Zittel  and 
Freeze. 

MuLQUEEN,  J.  This  is  a  motion  to  dismiss  an 
indictment  charging  the  defendants  with  conspiracy, 
in  violation  of  subdivision  5,  section  580  of  the  Penal 
Law.  The  defendants  having  been  allowed  to  inspect 
the  minutes  of  the  grand  jury,  contend  that  there  is 
no  legal  evidence  to  sustain  the  indictment. 

It  appears  that  for  four  years  under  lease  granted 
by  the  defendants  Zittel,  the  complainant  had  occu- 
pied an  apartment  of  ten  rooms  on  the  fourth  floor  of 
the  apartment  house,  No.  838  West  End  avenue,  in 
the  county  of  New  York.  His  lease  expired  Septem- 
ber 30,  1919.  In  May  of  that  year  he  notified  the 
defendants  Zittel  that  he  did  not  intend  to  renew  the 
lease.  The  defendant  Freeze  is  the  superintendent  of 
the  said  building.  About  June  first  defendant  Katz 
leased  the  apartment  for  a  term  beginning  October  1, 
1919.  On  June  fifth,  the  complainant  closed  his  apart- 
ment and  with  his  family  consisting  of  his  wife  and 
five  children  went  to  the  country.  About  the  third 
of  September  he  removed  some  of  his  belongings  from 


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People  v.  Zittbl.  35 


Misc.]     Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920. 

838  West  End  avenue  and  on  September  tenth  he 
removed  most  of  his  furniture  to  another  apartment 
he  had  hired,  leaving  at  the  AVest  End  avenue  rooms 
a  parlor  set  of  furniture  in  the  parlor,  some  clothes 
in  the  closets,  linen  in  the  linen  closet  and  a  lot  of 
children's  toys  and  other  things,  in  all  about  a  van 
load.  These  articles  were  all  removed  by  the  com- 
plainant on  September  twenty-seventh  to  his  new 
apartment.  None  of  this  property  was  lost  or  in  any 
way  damaged. 

When  defendant  Katz  leased  the  apartment  on  June 
first,  the  defendants  Zittel  agreed  to  make  extensive 
repairs,  the  defendant  Katz  consenting  to  pay  $500 
as  his  share  of  the  cost.  In  September  the  defendant 
Katz  urged  the  Zittels  to  have  this  work  done  so  that 
the  apartment  might  be  ready  for  occupancy  as  soon 
as  possible ;  he  urged  that  his  wife  was  in  a  sanitarium, 
that  her  doctors  had  told  him  that  her  health  would 
improve  if  she  were  taken  home  to  live  with  her  hus- 
band and  her  children;  that  he  had  offered  the  com- 
plainant six  weeks'  rent,  if  he  would  surrender  pos- 
session on  September  fifteenth ;  that  his  offer  had  been 
refused;  he  also  assured  the  defendants  Zittel  that  he 
would  pay  any  judgment  that  might  be  rendered 
against  them,  if  they  were  mulcted  in  damages,  for 
re-entering  the  apartment,  without  the  consent  of  the 
complainant,  prior  to  October  first. 

The  Zittels  yielded  to  his  importunities,  and  directed 
the  defendant  Freeze  to  proceed  with  the  repairs. 
Accordingly.  Freeze  gave  the  order  and  on  September 
thirteenth  the  painters  began  their  work.  On  the 
afternoon  of  the  fifteenth,  complainant's  wife  went  to 
the  apartment  and  found  the  painters  at  work;  they 
did  not  leave  when  requested  by  her,  and  the  defend- 
ant Freeze  refused  to  remove  them.  She  went  to  a 
police  station,  where  the  lieutenant  in  charge  properly 


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36  People  v.  Zittel. 


Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920.     [Vol.  114. 

refused  to  send  a  policeman  to  the  premises.  She 
then  went  to  the  office  of  the  Zittels  and  demanded  that 
the  workmen  be  removed,  and  be  kept  out  of  her  apart- 
ment. She  returned  to  the  apartment  on  the  morning 
of  the  sixteenth  and  found  the  workmen  in  the  rooms-. 
Freeze  again  refused  to  order  them  to  leave.  On  the 
seventeenth,  the  complainant  went  to  the  house  and 
requested  the  defendant  Freeze  to  remove  the  paint 
pots  and  other  things  from  the  apartment  and  to  keep 
the  men  out.  Freeze  promised  to  do  so.  On  the  eigh- 
teenth, complainant's  wife  again  visited  the  apart- 
ment and  found  five  or  six  workmen  there.  The  par- 
lor furniture  had  been  removed  to  another  room,  and 
part  of  the  flooring  had  been  taken  up.  She  called  up 
her  attorney  and  on  his  advice  procured  a  summons 
for  Freeze  to  appear  before  a  magistrate.  She 
returned  with  the  summons,  but  Mr.  Freeze  and  the 
men  refused  to  leave.  She  then  went  to  the  police 
station;  but  the  lieutenant  again  refused  to  send  an 
officer  to  tho  apartment.  She  returned  on  the  nine- 
teenth, and  found  no  workmen  in  the  rooms,  but  on 
the  twentieth  and  twenty-first  the  men  were  again  at 
work.  On  the  latter  day,  which  was  Sunday,  the  men 
left  at  her  request,  although  Freeze  directed  them  to 
remain.  Meanwhile,  the  magistrate  had  dismissed  the 
complaint  of  unlawful  entry.  Complainant's  wife  did 
not  return  to  the  apartment,  but  on  the  twenty-second 
the  complainant  went  there  with  a  friend.  They  went 
to  the  fourth  floor,  and  found  that  the  lock  had  been 
changed  so  that  they  could  not  enter  the  apartment. 
They  went  downstairs  and  waited  for  Mr.  Freeze,  who 
refused  to  let  them  use  the  elevator,  and  said  he  had 
orders  from  the  Zittels  not  to  allow  complainant  to  go 
above  the  ground  floor.  On  the  twenty-third  the  com- 
plainant secured  a  summons  in  the  Magistrate's  Court, 
directing  Mr.  Freeze  to  answer  a  complaint  of  disor- 


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People  v.  Zittel.  37 


Misc.]     Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920. 

derly  conduct.  On  the  twenty-fourth  the  magistrate 
ordered  Mr.  Freeze  to  give  the  new  keys  to  the  com- 
plainant. Freeze  promised  to  comply,  but  failed  to 
do  so.  The  complaint  was  nevertheless  dismissed  by 
the  magistrate.  Complainant  returned  to  the  premi- 
ses with  his  friend  and  a  county  detective  and  an  offi- 
cial from  the  district  attorney's  office.  Mr.  Freeze 
refused  to  give  them  the  keys  or  to  allow  them  to  use 
the  elevator.  They  managed  to  gain  access  to  the 
fourth  floor,  but  found  the  doors  locked,  and  they  were 
unable  to  enter  the  apartment.  After  much  discussion 
they  left  but  complainant  returned  later  in  the  even- 
ing and  Mr.  Freeze  allowed  him  to  enter  the  apart- 
ment to  get  some  articles.  Next  day  he  went  to  the 
district  attorney's  office.  Then  the  keys  were  given 
to  him,  and  he  removed  the  remainder  of  his  property 
on  September  twenty-seventh  to  his  new  home. 

I  have  stated  the  facts  fully  to  clearly  demonstrate 
that  the"  learned  magistrate  committed  no  error  in 
deciding  that  the  defendants  were  not  guilty  of  unlaw- 
ful entry,  and  that  there  had  been  neither  a  forcible 
entry  into  the  premises  nor  a  forcible  detainer  thereof. 
The  learned  district  attorney  evidently  is  of  the  same 
opinion,  as  he  has  not  charged  the  defendants  with 
these  crimes.  He  procured  an  indictment  charging 
conspiracy.  To  constitute  conspiracy  it  must  appear 
either  that  the  defendants  agreed  to  commit  a  crime, 
or  that  they  agreed  to  employ  criminal  means  to 
accomplish  a  lawful  end.  In  this  case  the  end  sought 
was  the  repair  of  the  landlord's  property,  which  is  not 
a  crime,  and  the  means  employed  violated  no  statute  in 
existence  at  that  time.  Assuming  that  the  landlord 
violated  the  provisions  of  the  lease,  by  re-entering  in 
the  absence  of  the  tenant,  to  make  repairs  before  the 
expiration  of  the  term,  that  at  most  would  make  him  a 
trespasser.  But  such  a  trespass  was  not  a  crime. 
Penal  Law,  §§  1425,  2036, 


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38  People  v.  Zittel. 

Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920.     [Vol.  114. 

If  the  complainant  sustained  damage  by  reason  of 
the  defendants'  acts,  his  remedy  must  be  sought  in  the 
civil  courts.  Not  every  violation  of  legal  right  is  a 
crime.  Furthermore  it  has  been  held  that  subdivision 
5  of  section  580  of  the  Penal  Law  does  not  apply  to 
real  estate.  People  v.  New  York  <&  Manhattcm  Beach 
R.  Co.,  84  N.  Y.  569.  This  case  was  cited  by  Mr. 
Justice  Greenbaum  on  granting  a  certificate  of  reason- 
able doubt  to  defendants  who  had  been  convicted  of 
conspiracy  in  the  Court  of  Special  Sessions  on  the 
charge  that  they  had  instigated  a  **  rent-strike.*' 
People  V.  Weser,  N.  Y.  L.  J.,  December  3, 1919. 

The  learned  district  attorney  maintains  that  the  cer- 
tificate of  the  learned  justice  was  merely  the  expres- 
sion of  a  doubt  as  to  the  legality  of  a  conviction  of  per- 
sons who  were  in  prison,  and  that  it  should  not  receive 
the  weight  of  a  well-considered  opinion.  On  the  con- 
trary, I  regard  the  ruling  of  the  learned  justice,  who 
is  now  a  member  of  the  Appellate  Division,  as  a  correct 
statement  of  the  law  defined  in  the  earlier  case. 

The  learned  district  attorney  vigorously  opposes 
this  motion,  and  as  the  issue  was  deemed  of  great 
importance  to  the  conununity  in  view  of  the  housing 
conditions  at  that  time,  and  as  the  defendants  were  on 
bail,  I  deemed  it  advisable  to  await  the  decision  of  the 
Appellate  Division.  But  that  appeal  has  not  been 
heard ;  new  laws  have  been  enacted,  and  this  case  has 
appeared  several  times  on  the  daily  calendar  of  this 
court  for  trial.  The  decision  should  not  be  delayed 
further.  It  is,  perhaps,  proper  to  add  that  the  so-called 
rent  laws  have  not  been  considered,  as  their  enactment 
was  subsequent  to  these  occurrences. 

Bail  discharged  and  indictment  dismissed  as  to  all 
the  defendants. 

Indictment  dismissed. 


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Matter  op  Goodwin.  39 

Misc.]     Surrogate's  Court,  New  York  County,  December,  1920. 

Matter  of  the  Estate  of  Nat  C.  Goodwin,  Deceased. 

(Surrogate's  County,  New  York  County,  December,  1920.) 

Qif ts  —  cansa  mortis  —  acconnting  —  ezecators  and  administratora 
—  jurisdiction  —  Surrogate 's  Court  —  evidence  —  Code  Oiv. 
Pro.  §  2679. 

Objection  having  been  made  to  the  accounts  of  an  adminis- 
trator for  failure  to  account  for  the  proceeds  of  a  judgment 
assigned  by  the  decedent  and  satisfied  of  record,  a  motion  to 
dismiss  the  objection,  on  the  ground  that  the  Surrogate's  Court 
has  no  jurisdiction  to  determine  the  issues  involved,  will  be 
denied  under  section  2679  of  the  Code  of  Civil  Procedure. 

Where,  with  the  exception  of  delivery,  all  the  other  elements 
of  a  gift  causa  mortis  of  household  furniture,  of  which  decedent 
had  no  right  of  possession  until  the  termination  of  the  lease  of 
an  apartment  which  he  had  sublet,  were  amply  proved  and  con- 
ceded, and  it  appears  that  he  had  given  the  donee  the  keys  of 
the  apartment  before  the  gift  was  formally  evidenced  by  a 
writing,  it  will  be  held  that  t^ere  was  a  valid  gift  causa  mortis. 

Proceedings  upon  the  accounting  of  an  administra- 
tor. 

House,  Grossman  &  Vorhaus,  for  administrator. 

Rosenthal  &  Halperin  (Max  Halperin,  of  counsel), 
for  Georgia  Gardner, 

Dittenhoefer  &  Fishel  (I.  M.  Dittenhoefer,  of  coun- 
sel), for  objectants  M'arc  Klaw  and  Abraham  L.  Ehr- 
langer. 

Hedges,  Ely.&  Frankel,  for  creditor  of  decedent, 
Tohn  Wanamaker. 

CoHALAN,  S.    Jurisdictional  question: 
Objection  is  made  to  the  account  upon  the  ground 
that  the  administrator  has  failed  to  account  for  the 


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40  Matter  of  Goodwin. 

Surrogate's  Court,  New  York  County,  December,  1920.     [Vol.  114. 

proceeds  of  a  judgment  in  the  sum  of  $1 5,374.56,  which 
was  satisfied  of  record  on  August  5,  1919.  Upon  show- 
ing that  the  judgment  was  assigned  by  the  decedent 
during  his  lifetime  the  administrator  moves  to  dis- 
miss this  objection  upon  the  ground  that  a  deter- 
mination of  this  issue  involves  the  exercise  of  general 
equitable  power  which  the  surrogate  does  not  possess. 
The  administrator  relies  upon  Matter  of  Schnabel, 
202  N.  Y.  134,  and  the  objecting  creditors  upon  Matter 
of  Watson,  215  id.  209. 

In  Matter  of  Schnabel,  supra,  it  appeared  that  the 
intestate  had  delivered  to  his  wife,  the  administratrix, 
a  bill  of  sale  which  transferred  to  her  a  saloon  busi- 
ness. Upon  her  accounting  objections  were  filed  upon 
the  ground  that  she  had  not  accounted  for  the  proceeds 
of  the  sale  of  the  saloon  business.  The  administratrix 
set  up  the  bill  of  sale,  which  was  found  to  be  fraudulent 
and  void.  The  Court  of  Appeals  held  that  notwith- 
standing the  provisions  of  section  2731  of  the  Code  of 
Civil  Procedure,  the  surrogate  had  no  jurisdiction  to 
set  aside  the  bill  of  sale. 

In  Matter  of  Watson,  supra,  a  similar  situation 
arose.  Objections  were  made  to  the  executors'  account 
upon  the  ground  that  they  failed  to  account  for  a  ruby 
ring  and  a  pearl  necklace  which  it  was  alleged  belonged 
to  the  testatrix  at  the  time  of  her  death.  One  of  the 
accountants  claimed  that  the  ring  and  necklace  had 
been  given  to  her  by  the  decedent.  Upon  the 
authority  of  Matter  of  Schnabel,  supra,  the  Appellate 
Division  decided  that  the  surrogate  had  no  jurisdic- 
tion to  determine  the  issue.  The  Court  of  Appeals, 
however,  said  (215  N.  Y.  211) : 

**  The  appellant  in  this  case  merely  invoked  the 
jurisdiction  of  the  surrogate  to  compel  an  executor  to 
account  for  the  property  of  the  testator,  and  the  exer- 
cise   of    that   jurisdiction   depended   solely   on    the 


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Matter  of  Goodwin.  41 

Misc.]     Surrogate's  Court,  New  York  County,  December,  1920. 

determination  of  the  question  of  fact  whether  the  prop- 
erty belonged  to  the  testatrix  at  the  time  of  her  death. 
If  the  mere  assertion  of  a  claim  of  ownership  by  an 
executor  ousts  the  surrogate  of  jurisdiction  to  compel 
an  account  of  the  property  of  the  testator,  it  will  be  a 
simple  matter  to  accomplish  that  result  in  every  case 
in  which  an  executor  may  prefer  some  other  tribunal. 
Section  2731  of  the  Code  of  Civil  Procedure,  prior  to 
the  amendment  of  1914,  provided  in  part  as  follows: 
*  On  the  judicial  settlement  of  the  account  of  an  exec- 
utor or  administrator,  he  may  prove  any  debt  owing 
to  him  by  the  decedent.  Where  a  contest  arises  be- 
tween the  accounting  party  and  any  of  the  other  par- 
ties respecting  property  alleged  to  belong  to  the  estate, 
but  to  which  the  accounting  party  lays  claim  either 
individually  or  as  the  representative  of  the  estate,  or 
respecting  a  debt,  alleged  to  be  due  by  the  accounting 
party  to  the  decedent,  or  by  the  decedent  to  the 
accounting  party,  the  contest  must,  except  where  the 
claim  is  made  in  a  representative  capacity,  in  which 
case  it  may,  be  tried  and  determined  in  the  same  man- 
ner as  any  other  issue  arising  in  the  surrogate's 
court.'  It  would  seem  that  the  present  case  falls 
within  both  the  letter  and  the  spirit  of  the  provision 
just  quoted.'' 

Section  2731  of  the  Code  of  Civil  Procedure  as 
above  quoted  (now  2679)  is  substantially  the  same  as 
now,  so  far  as  this  question  is  concerned.  To  show 
'*  That  the  Surrogate's  Court  has  jurisdiction  to  try 
and  determine  the  issues  arising  upon  such  a  contest 
as  was  involved  in  this  case  "  (p.  213),  the  Court  of 
Appeals  in  the  Watson  case  (p.  213)  cited  several 
Surrogate's  Court  cases,  among  which  are  Matter  of 
Ammarell,  38  Misc.  Rep.  399,  which  involved  an  assign- 
ment, and  Matter  of  Munson,  70  id.  461,  which  involved 
the  validity  of  a  mortgage  and  other  instruments,  and 


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42  Matteb  of  Goodwin. 

Surrogate's  Court,  New  York  County,  December,  1920.     [Vol.  114. 

Matter  of  Archer,  51  id.  260,  which  involved  an  assign- 
ment of  savings  bank  accounts.  In  each  of  these  cases 
the  same  question  of  jurisdiction  was  raised  that  is 
involved  in  this  case.  After  citing  these  cases  the 
Court  of  Appeals  said  (p.  213) :  **  Plainly  the  Surro- 
gate's  Court  has  jurisdiction  to  try  and  determine 
issues  arising  upon  any  contest  respecting  a  debt 
alleged  to  be  due  by  the  accounting  party  to  the  deced- 
ent or  by  the  decedent  to  the  accounting  party.  With 
equal  reason  it  should  have  jurisdiction  to  determine 
conflicting  claims  of  ownership  to  personal  property 
between  an  accounting  party  and  his  estate.  The  trial 
and  determination  of  such  issues  falls  far  short  of  the 
exercise  of  general  equitable  jurisdiction,  and  we  think 
that  the  statute  was  intended  to  confer  jurisdiction  in 
both  classes  of  cases.*'  By  the  above  language  and  by 
the  citation  of  Surrogate's  Court  cases  involving  the 
validity  of  assignments  and  mortgages  it  appears  that 
the  Watson  case  practically  overruled  the  earlier 
Schnabel  case.  Section  2731  of  the  Code  of  Civil  Pro- 
cedure (now  2679)  is  now  held  to  mean  just  what  it 
says. 

If  the  question  of  jurisdiction  were  in  any 
doubt  after  the  Watson  decision  the  subsequent  revi- 
s:ion  of  chapter  18  of  the  Code  of  Civil  Procedure,  in 
1914,  including  the  enactment  of  section  2510  of  the 
Code  of  Civil  Procedure,  as  it  now  reads,  seems  to  give 
to  the  Surrogate's  Court  an  ample  grant  of  jurisdic- 
tion. Even  under  the  narrowing  constructions  of  sec- 
tion 2510  of  the  Code  of  Civil  Procedure,  that  have 
been  adopted  by  the  Appellate  Division  beginning 
with  the  Holdworth  case  (166  App.  Div.  150),  sub- 
divisions 3  and  4  of  section  2510  of  the  Code  of 
Civil  Procedure,  read  in  connection  with  the  general 
grant  of  jurisdiction  contained  in  the  first  paragraph 
of  the   section,   are  certainly  suflBcient.     Matter  of 


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Matteb  of  Goodwin.  43 

Misc.]     Surrogate's  Court,  New  York  County,  December,  1920. 

Brady,  111  Misc.  Rep.  492.  The  motion  to  dismiss 
this  objection  is  denied. 

Question  of  gift : 

Miss  Georgia  L.  Gardner  claims  title  to  the  furniture 
referred  to  in  Schedule  G  of  the  account  through  a  gift 
causa  mortis.  It  appears  to  be  practically  conceded 
that  Mr.  Goodwin  died  of  the  ailment  from  which  he 
was  suffering  when  he  made  the  gift.  All  of  the  other 
elements  of  a  gift  catisa  mortis,  except  delivery,  were 
amply  proved  and  in  effect  conceded  at  the  hearing. 
This  is  the  only  question  discussed  in  the  briefs  sub- 
mitted. The  gift  is  alleged  to  have  been  made  Decem- 
ber 26,  1918.  It  was  evidenced  by  a  writing  which 
among  other  things  stated,  **  To  you  Georgia  L.  Gard- 
ner, in  the  event  of  my  death,  I  give  you  the  entire  con- 
tents of  my  apartment  at  No.  601  West  One  Hundred 
and  Fifteenth  street  to  do  with  as  you  see  fit.'*  It 
appears  that  when  the  alleged  gift  was  made  the  apart- 
ment was  sublet  and  Mr.  Goodwin  was  receiving  the 
rent.  One  of  the  witnesses  testified  that  the  intestate 
asked  Miss  Gardner  **  if  she  had  a  list  of  the  inventory 
of  the  apartment  which  he  had  sent  her  to  get  on  the 
sublet  and  asked  her  if  she  had  the  keys  to  the  apart- 
ment, with  the  list,  and  she  answered,  *Yes,'  and  from 
that  the  conversation  led  into  the  drawing  of  this  paper 
at  his  dictation."  Mr.  Goodwin  spoke  of  how  much 
Miss  Gardner  had  done  for  him  and  stated  that  the 
furniture  was  all  he  had ;  that  he  did  not  expect  to  live 
very  long,  and  expressed  anxiety  to  do  as  much  as  he 
could  for  her;  that  he  wanted  her  to  have  the  apart- 
ment and  that  she  should  have  it  in  writing.  Later,  on 
December  31, 1918,  in  the  presence  of  another  witness, 
the  intestate  again  stated  that  he  wanted  Miss  Gard- 
ner to  have  the  title  to  the  apartment.  Miss  Gardner 
was  present  and  the  paper  was  produced  and  Mr. 
Goodwin  read  it  aloud.    Miss  Gardner  produced  a  copy 


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44  ilATTlLR    OF    GoOUV.'IN. 

Surrogate's  Court,  Xeu  York  County,  December,  1920.     [Vol.  114. 

of  this  paper  at  the  hearing  and  it  was  stipulated  that 
it  be  used  in  place  of  the  original,  which  had  been  sub- 
mitted to  this  court  upon  a  prior  application  and  has 
not  yet  been  found. 

It  thus  appears  that  the  donor  had  already  given  the 
keys  of  the  apartment  to  Miss  Gardner  before  the  gift 
was  formally  made.  It  was  not  necessary  for  him  to 
ask  her  for  the  keys  and  again  formally  present  them 
with  the  paper  that  he  executed.  It  seems  to  be  suf- 
ficient if  he  referred  to  the  fact  that  she  had  the  keys 
and  therefore  possessed  the  means  to  reduce  the  furni- 
ture to  possession.  She  was  not  lK>und  to  do  so  at 
once.  In  fact,  Goodwin's  gift  was  subject  to  the  lease 
of  the  apartment  with  the  furniture  included.  He  had 
no  right  to  the  possession  of  the  furniture  until  the 
termination  of  the  lease.  The  fact  of  the  existing  lease 
and  the  collection  of  rent  by  him  does  not  prove  there 
was  no  delivery.  It  may  also  be  pointed  out  that  the 
testimony  of  the  maid  as  to  the  keys  is  merely  negative. 
She  knew  of  two  sets  of  keys  only  and  said  that  her 
employer,  Mr.  Goodwin,  did  not  have  possession  of 
either  of  them  during  the  period  when  the  gift  was 
made.  Unknown  to  her,  however,  he  doubtless  had  a 
set  of  keys,  which  must  have  been  the  ones  referred  to 
by  the  witness,  who  testified  to  his  statement  that  Miss 
Gardner  already  had  the  keys. 

A  symbolical  delivery  is  sufficient.  But  even  in  gifts 
inter  vivos,  where  the  rule  as  to  delivery  is  more 
strict,  there  is  authority  for  the  proposition  that  where 
the  gift  is  evidenced  by  a  writing,  as  in  this  case,  the 
ordinary  rules  as  to  delivery  are  somewhat  relaxed. 
See  Matter  of  Colin,  187  App.  Div.  392;  Hawkins  v. 
Union  Trust  Co.,  Id.  472. 

I  will  hold  that  the  intestate  made  a  valid  gift  causa 
mortis  to  Miss  Gardner. 

Decreed  accordingly. 


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Matter  of  Lincoln.  46 

Misc.J     Surrogate's  Court,  New  York  County,  December,  1920. 

Matter  of  the  Estate  of  Lowell  Lincoln,  Deceased. 
(Surrogate's  Court,  New  York  County,  December,  1920.) 

Transfer  tax—- what  not  subject  to  —  partnership  agreement  — 
good  will  —  evidence  —  services  —  when  deduction  from  net 
profits  for  salaries  unauthorized. 

Where  by  a  partnership  agreement  the  money  standing  in 
the  name  of  a  partner  is  to  be  credited  on  the  first  days  of 
January  and  July  in  each  year,  the  share  of  a  partner  in  the 
capital  with  interest  to  the  date  of  his  death,  September  2, 
1917,  represents  the  value  of  the  transfer  at  his  death,  and  a 
claim  of  the  executors  in  a  transfer  tax  proceeding  that  the 
interest  be  discounted  to  January  1,  1918,  is  properly 
disallowed. 

The  partnership  agreement  provided  that  the  capital  of  the 
member  of  the  firm  who  died  during  the  continuance  of  the 
copartnership  should  remain  in  the  business  for  a  period  of 
not  exceeding  nine  months  subsequent  to  his  death  and  that  his 
personal  representatives  should  receive  the  same  interest  on 
capital  and  the  same  share  of  the  profits  for  that  period  as  was 
provided  by  the  copartnership  agreement.  Held,  that  as  the 
profits  for  the  nine  months  succeeding  decedent's  death  were 
not  due  and  payable  under  the  partnership  agreement  until  the 
expiration  of  the  period  therein  fixed,  and  carried  no  interest, 
the  amount  of  said  profits  should  be  discounted  so  as  to  ascer- 
tain its  value  as  of  the  date  of  decedent's  death. 

The  business  of  the  firm  was  that  of  selling  goods  on  com- 
mission and  the  unusual  earnings  for  the  years  1916  and  1917, 
which  the  transfer  tax  appraiser  in  estimating  the  value  of  the 
good  will  included  in  his  average  of  profits,  were  due  solely 
to  the  extraordinary  increase  in  the  inventory  value  of  the 
merchandise,  on  the  sale  of  which  commissions  were  received. 
Held,  that  in  the  circumstances  the  profits  for  those  years 
should  have  been  excluded. 

The  profits  of  the  year  1914  should  have  been  eliminated 
because  of  the  conditions  which  resulted  in  profits  far  below 
normal  earnings,  and  the  average  for  1912,  1913  and  1915 
should  have  been  taken  as  the  basis  for  estimating  the  value 
of  the  good  wilL 


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46  Matter  of  Lincoln. 

Surrogate's  Court,  New  York  County,  December,  1920.     [Vol.  114. 

The  five  per  cent  of  profits  which,  under  the  partnership 
agreement  decedent  was  entitled  to  receive,  should  have  been 
applied  to  the  good  will  value  of  the  business  in  ascertaining 
his  interest  therein. 

No  proof  having  been  offered  of  the  nature,  extent  or  value 
of  the  services,  if  any,  rendered  by  decedent  and  his  copart- 
ners to  the  firm,  a  deduction  from  the  net  profits,  for  salaries 
to  the  copartners,  was  unauthorized  and  properly  disallowed 
by  the  transfer  tax  appraiser. 

Appeal  from  an  order  fixing  the  transfer  tax. 

NicoU,  Anable,  Fuller  &  Sullivan  (Outerbridge  Hor- 
sey, of  counsel).,  for  executor. 

Lafayette  B.  Gleason  (Schuyler  C.  Carlton,  of  coun- 
fipel),  for  State  Comptroller. 

CoHALAN,  S.  This  appeal  is  taken  by  the  executors 
of  decedent's  estate  from  the  order  fixing  the  transfer 
tax  on  the  ground  that  his  interest  in  the  copartnership 
of  Catlin  &  Co.  has  been  appraised  in  the  report  in 
excess  of  its  true  value. 

The  sum  found  by  the  appraiser  as  the  amount  due 
decedent  from  the  firm  was  $841,844.96,  to  which  has 
been  added  interest  from  July  1,  1917,  to  September 
2,  1917,  the  date  of  decedent's  death. 

The  copartnership  agreement  provided  that  the 
money  standing  in  the  name  of  a  copartner  would  be 
credited  on  the  first  days  of  January  and  July  in  each 
year.  The  appraiser  properly  disallowed  the  claim 
of  the  executors  that  the  item  of  interest  be  discounted 
to  January  1,  1918.  The  share  of  the  decedent  in  the 
capital,  with  interest  to  the  date  of  his  death,  repre- 
sents the  value  of  the  transfer  as  of  that  date. 

The  copartnership  agreement  contained  a  provision 
that  the  capital  of  the  member  of  the  firm  who  died 
during  the  continuance  of  the  copartnership  should 


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Matter  of  Lincoln.  47 

Misc.]     Surrogate's  Court,  New  York  County,  December,  1920. 

remain  in  tlie  business  for  a  period  of  not  exceeding 
nine  months  subsequent  to  his  death  and  that  his  per- 
sonal representatives  should  receive  the  same  interest 
on  capital  and  the  same  share  of  the  profits  for  that 
period  as  was  provided  by  the  copartnership  agree- 
ment. The  profits  for  the  nine  months  succeeding 
decedent's  death  were  shown  to  be  the  sum  of  $36,- 
462.84.  As  these  were  not  due  and  payable  under  the 
agreement  until  the  expiration  of  the  period  therein 
fixed,  and  carried  no  interest,  I  think  that  this  sum 
should  be  discounted  so  as  to  ascertain  its  value  as  of 
the  date  of  decedent's  death. 

In  estimating  the  value  of  the  good  will  the  appraiser 
has  included  in  his  average  the  profits  for  the  years 
1916  and  1917.  The  firm  was  in  the  business  of  selling 
goods  on  commission.  The  unusual  earnings  for  the 
two  years  mentioned  were  due  solely  to  the  extraordi- 
nary increase  in  the  inventory  value  of  the  merchan- 
dise on  the  sale  of  which  the  commissions  were 
received.  Under  the  peculiar  circumstances  of  this 
case  as  disclosed  by  the  record  I  am  of  the  opinion  that 
the  profits  for  these  two  years  should  be  excluded  in 
the  calculation  of  the  good  will  value.  The  year  1914, 
which  was  also  considered  by  the  appraiser,  should  be 
eliminated  because  of  the  conditions  which  resulted 
in  profits  far  below  the  normal  earnings  of  the  copart- 
nership. The  average  for  the  years  1912,  1913  and 
1915  should  be  taken  as  the  basis  for  the  calculation 
of  the  good  will. 

Pursuant  to  the  articles  of  copartnership  the  dece- 
dent was  to  receive  five  per  cent  of  the  profits.  The 
appraiser  should  have  applied  this  percentage  to  the 
good  will  value  of  the  business  in  ascertaining  dece- 
dent's interest  therein.  Matter  of  HeXlman,  172  N.  Y. 
Supp.  671;  aflfd.,  187  App,  Div.  934;  affd.,  226  N.  Y. 
702. 


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48       Slattery  &  Co.  V.  National  City  Bank. 

Municipal  Court  of  New  York,  December,  1920.     [Vol.  114. 

No  proof  was  oflFered  of  the  nature,  extent  or  value 
of  the  services,  if  any,  rendered  by  decedent  and  his 
copartners  to  the  firm.  Under  these  circumstances  a 
deduction  from  the  net  profits  for  salaries  to  the 
copartners  would  be  unauthorized,  and  the  appraiser 
properly  disallowed  the  claim. 

The  report  will  be  returned  to  the  appraiser  for 
correction  as  indicated  in  this  decision. 

Report  returned  to  appraiser  for  correction. 


Slattery  &   Company,   Plaintiff,   v.   The    Nationaij 
City  Bank  of  New  York,  Defendant. 

(Municipal  Court  of  the  City  of  New  York,  Borongh  of  Manhattan, 
Ninth  District,  December,  1920.) 

Conversion  —  check  —  delivery  to  wrong  person  by  mistake  — 
bona  fide  purchaser  —  when  drawer  of  check  as  assignee  of 
proper  payee  acquires  no  title— negligence  of  drawer  proxi- 
mate cause  of  loss. 

To  maintain  an  action  for  conversion  the  plaintiff  must  have 
some  title  to  or  interest  in  the  property  alleged  to  have  been 
converted.     (P.  61.) 

In  an  action  for  the  alleged  conversion  of  a  check  and  the 
proceeds  thereof  drawn  by  plaintiff  it  appeared  by  the  agreed 
statement  of  facts  that  by  mistake  the  check  was  forwarded, 
not  to  the  payee,  but  to  anoth^  customer  of  plaintiff  having 
the  same  name,  upon  whose  indorsement  of  the  check  the 
amount  thereof  was  paid  to  him  by  a  bank  in  the  belief  that 
he  was  the  proper  payee.  Held,  that  the  alleged  proper  payee 
of  the  check,  who  received  nothing,  acquired  no  title  to  or 
interest  therein,  and  that  plaintiff  as  his  assignee  had  no 
right  of  action  for  the  conversion  of  the  check  against  the 
defendant  bank,  which  after  collecting  the  check  from  the  bank 
on  which  it  was  drawn  transmitted  the  proceeds  to  the  bank 
which  had  cashed  the  check.     (Pp.  61,  62.) 


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Slattbby  &  Co.  V.  National  City  Bank.       49 

Misc.]     Mnnicipal  Court  of  New  York,  December,  1920. 

The  negligenee  of  the  plaintiff  or  its  agent  delivering  the 
eheek  to  the  wrong  person,  thus  enabling  him  to  pass  an 
indefeasible  title  to  a  bona  fide  purchaser,  was  the  proximate 
eaose  of  the  loss  which  plaintiff  must  bear  rather  than  defend- 
ant which  parted  with  its  money  in  absolute  good  faith. 
(Pp.  63,  64.) 

Submission  of  controversy  on  agreed  statement  of 
faets. 

Hardin  &  Hess  (Harold  B/Elgar  and  Ernest  Angel, 
of  counsel),  for  plaintiff. 

Shearman  &  Sterling  (Chauncey  B.  Garver  and, 
Chester  B.  McLaughlin^  Jr.,  of  counsel),  for 
defendant. 

Genung,  J.  This  is  an  action  for  the  sum  of  $167.46, 
with  interest  from  October  27,  1919,  brought  by  the 
plaintiff  for  the  alleged  conversion  by  defendant  of  a 
check  and  the  proceeds  thereof,  drawn  by  the  plain- 
tiff on  the  Seaboard  National  Bank  of  New  York, 
numbered  88G2,  dated  October  26,  1919,  and  payable 
to  the  order  of  Harold  E.  Richards.  Plaintiff  is  a 
brokerage  firm  and  dealer  in  investment  securities. 
Some  months  prior  to  the  issuance  of  the  check,  the 
plaintiff  had  on  its  books  two  accounts,  one  in  the 
name  of  H.  E.  Richards,  Rockdale,  Tex.,  and  the 
other  in  the  name  of  Harold  E.  Richards,  Bartlesville, 
Okla.  In  April,  1919,  the  plaintiff  closed  its  account 
with  the  said  H.  E.  Richards,  Rockdale,  Tex.,  and 
sent  him  a  fifty  dollar  liberty  bond  and  a  check  for  the 
sum  of  fifty-four  dollars  and  seventy-four  cents, 
together  with  a  statement  showing  that  his  account 
was  closed.  In  October,  1919,  the  account  with  the 
said  Harold  E.  Richards,  Bartlesville,  Okla.,  was  open, 
and  at  that  time  there  was  sold  for  the  account  of  the 
said  Harold  E.  Richards,  Bartlesville,  Okla.,  a  certain 
quantity  of  securities,  and  a  check  for  $167.64,  dated 
4 


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50      Slattery  &  Co.  V.  National.  City  Ba^jk. 

Municipal  Court  of  New  York,  December,  1920.     [Vol.  114. 

October  26,  1919,  numbered  8862,  payable  to  Harold 
E.  Richards,  was  drawn  on  the  Seaboard  National 
Bank  of  New  York.  By  mistake  the  check  was  for- 
warded to  H.  E.  Richards,  Rockdale,  Tex.,  instead  of 
being  forwarded  to  Harold  E.  Richards,  Bartlesville, 
Okla.  Inclosed  with  the  check  was  a  statement  showing 
the  transaction  out  of  which  the  account  arose.  Upon 
receipt  of  the  check,  Harold  E.  Richards,  Rockdale, 
Tex.,  indorsed  the  check,  and  secured  the  endorsement 
of  J.  R.  Breen,  who  was  known  to  the  oflBcers  of  the 
Taylor  National  Bank,  Taylor,  Tex.,  and  had  the  check 
cashed  by  the  Taylor  National  Bank,  who  delivered  the 
proceeds  thereof  to  Harold  E.  Richards,  believing  him 
to  be  the  proper  payee  of  the  check.  The  check  then 
was  sent  to  the  National  City  Bank,  the  defendant 
herein,  by  its  correspondent,  the  Taylor  National 
Bank,  and  the  National  City  Bank  collected  the  pro- 
ceeds thereof  from  the  Seaboard  National  Bank  and 
transmitted  the  same  to  the  Taylor  National  Bank. 
The  National  City  Bank  undoubtedly  believed,  as  did 
the  Taylor  National  Bank,  that  the  indorsement  of 
Harold  E.  Richards  was  the  indorsement  of  the  proper 
payee  of  the  check.  Harold  E.  Richards,  Bartlesville, 
Okla.,  never  received  the  proceeds  of  the  check,  and 
prior  to  the  commencement  of  the  action,  assigned  to 
the  plaintiff  herein  any  claim  which  he  might  have  by 
reason  of  the  issuance  of  the  check  or  of  any  of  the 
facts  above  stated. 

The  plaintiff  claims  that  the  indorsement,  made  by 
Harold  E.  Richards,  Rockdale,  Tex.,  with  the  knowl- 
edge that  he  had  no  right  to  the  check  or  the  proceeds 
thereof,  was  a  forged  indorsement,  although  this 
knowledge  was  not  communicated  to  the  Taylor 
National  Bank,  and  claims  the  forged  indorsement 
gave  to  the  defendant  no  right  to  present  this  check 
to  the  Seaboard  National  Bank  or  to  retain  or  dispose 
of  the  proceeds. 


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Slattery  &  Co,  V.  National.  City  Bank.       51 
Misc.]     Municipal  Court  of  New  York,  December,  1920. 

If  this  indorsement  was  a  forged  indorsement,  it  is 
well  settled  that  no  title  passed  by  the  forged  indorse- 
ment (Neg.  Inst.  Law,  §  42),  and,  further,  the  bank  or 
person  making  the  payment  on  the  forged  instrument 
did  so  at  its  peril  {Seaboard  National  Bank  v.  Bank 
of  America,  193  N.  Y,  26),  and  the  defendant  obtained 
no  title  to  the  check  and  the  proceeds  thereof  belonged 
to  the  payee  whose  indorsement  had  been  forged 
{Stein  V.  Empire  Trust  Co.,  148  App.  Div.  850),  and 
the  defendant,  having  collected  the  amount  of  tiie 
check  with  the  forged  indorsement  of  the  payee 
thereon,  is  not  entitled  to  retain  the  proceeds  as 
against  the  payee.  Standard  Steam  Specialty  Co.  v. 
Corn  Exchange  Bank,  84  Misc.  Rep.  445.  The  plain- 
tiff claims  the  diversion  by  the  defendant,  under  these 
circumstances,  of  the  proceeds  of  the  check  from  the 
proper  payee  and  payment  thereof  to  the  Taylor 
National  Bank,  constituted  a  conversion  and  gave  the 
plaintiff  a  right  of  action  for  damages  to  the  face 
amount  of  the  check.  Graves  v.  America/n  Exchange 
Bank,  17  N.  Y.  205;  Mead  v.  Young,  4  T.  E.  28;  Sea- 
board  National  Bank  v.  Bank  of  America,  198  N.  Y. 
26. 

The  defendant  claims  that  the  plaintiff,  as  the 
assignee  of  Harold  E.  Richards,  Bartlesville,  Okla., 
has  no  interest  in  the  check.  It  is  well  settled  that,  to 
support  an  action  for  conversion,  the  plaintiff  must 
have  some  title  or  interest  in  the  property  alleged  to 
have  been  converted.  Title  to  a  check  passes  by  in- 
dorsement and  delivery,  or,  if  the  check  is  payable  to 
bearer,  by  delivery  alone.  It  appears  that  the  plain- 
tiff's assignor,  the  alleged  proper  payee,  received 
nothing,  since  instead  of  being  delivered  to  him,  the 
check  was  delivered  to  a  third  i>erson,  and  conse- 
quently Harold  E.  Richards,  Bartlesville,  Okla., 
acquired  no  title  or  interest  in  the  check.    If  this  be 


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52      Slattbby  &  Co.  V.  National  City  Bank. 

Municipal  Court  of  New  York,  December,  1920.     [Vol.  114. 

SO,   the   plaintiff's  assignor  had  no  right  of  action 
against  the  defendant  for  conversion. 

The  defendant  further  claims  there  was  no  forgery 
in  the  indorsement  of  the  check  by  Harold  E.  Richards, 
Rockdale,  Tex.,  to  whom  the  check  was  sent  by  the 
plaintiff.  Undoubtedly  he  knew,  when  he  received  the 
check,  that  a  mistake  had  been  made  and  that  the  plain- 
tiff might  make  claim  thereafter  for  the  proceeds 
thereof,  but  that  does  not  alter  the  fact  that  the  plain- 
tiff actually  made  and  delivered  the  check  to  him  as 
payee  and  that  he  could  give  a  good  title  to  it  by 
indorsement  to  a  bona  fide  purchaser  for  value  and 
without  notice.  The  only  ground  for  claiming  that  the 
plaintiff's  assignor  was  the  payee  of  the  check  was  that 
it  was  drawn  by  the  plaintiff  to  be  forwarded  to  him 
in  payment  of  certain  securities  which  had  been  sold 
for  his  account  by  the  plaintiff.  The  plaintiff's 
original  purpose  in  drawing  the  check,  however,  is  of 
no  importance  when  it  actually  delivered  the  check  to 
a  third  person,  who  was  also  named  in  the  check  as 
payee.  The  intent  to  make  the  check  payable  to  Harold 
E.  Richards,  Bartlesville,  Okla.,  was  superseded  and 
blotted  out  by  the  actual  delivery  of  the  check  to  Harold 
E.  Richards,  Rockdale,  Tex.  Weisberger  Co.  v.  Bar- 
berton  Savings  Bank,  84  Ohio  St.  21 ;  34  L.  R.  A.  (N.  S.) 
1101 ;  Heavey  v.  Commercial  National  Bank,  27  Utah, 
222.  In  Weisberger  Co.  v.  Barberton  Savings  Bank, 
the  plaintiff  drew  a  check  to  the  order  of  Max  Roth,  who 
did  business  as  the  plaintiff  knew  at  48  Walker  street, 
New  York,  but  by  mistake  mailed  the  check  to  Max 
Roth,  48  Walker  street,  Cleveland,  0.  When  the  letter 
carrier  found  no  one  by  that  name  on  Walker  street, 
he  found  one  Max  Roth  on  Henry  street,  and  gave  him 
the  letter.  He  indorsed  the  check,  transferred  it  for 
cash  to  another,  who  collected  from  the  drawee  bank. 
In  an  action  by  the  plaintiff  against  the  drawee  bank. 


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Slattery  &  Co.  V.  National  City  Bank.       53 
Misc.]     Municipal  Court  of  New  Ycrk»  December,  1920. 

the  court  held  the  plaintiff  could  not  recover.  In 
Eeavey  v.  Commercial  National  Bank,  a  bank  by  postal 
card,  mistakenly,  informed  the  wrong  person,  but  of 
the  same  name,  that  money  had  been  deposited  to  his 
credit  in  the  bank.  This  person  wrote  to  the  bank  for 
a  draft  which  the  bank  sent  to  him  and  which  he 
indorsed  to  a  holder  in  due  course,  and  the  court  held 
that  he  had  a  good  title. 

It  is  well  settled  in  this  state  that,  when  a  check  is 
delivered  to  one  person,  even  though  the  person 
delivering  it  believes  him  to  be  some  one  entirely  dif- 
ferent, the  delivery  is  sufficient  to  enable  the  person 
receiving  it  to  pass  an  indefeasible  title  to  a  hona  fide 
purchaser.  First  National  Bank  v.  American  Exch. 
Nat.  Bank,  49  App.  Div.  349;  affd.,  170  N.  Y.  88; 
Sherman  v.  Corn  Exchange  Bank,  91  App,  Div.  84; 
Hartford  v.  Greenwich  Bank,  157  id.  448.  Under  these 
decisions,  when  the  plaintiff  delivered  the  check  to 
Harold  E.  Richards,  Rockdale,  Tex.,  the  fact  that  it 
believed  that  he  was  the  person  to  whom  it  was 
indebted  was  immaterial.  Since  there  was  a  delivery 
to  Harold  E.  Richards,  Rockdale,  Tex.,  even  though 
the  plaintiff  in  making  the  delivery  labored  under  a 
misapprehension,  it  is  clear  that  the  said  Richards 
could  pass  a  good  title  to  a  bona  fide  purchaser.  Salen 
V.  Bank  of  the  State  of  New  York,  110  App.  Div.  636; 
Cluett  V.  Couture,  140  id.  830. 

In  addition  to  the  foregoing,  the  defendant  claims 
that  the  plaintiff  is  estopped,  even  if  it  were  held  that 
the  indorsement  in  question  was  a  forged  indorsement^ 
from  asserting  that  fact.  The  plaintiff  actually 
delivered  the  check  to  a  man  having  the  same  name  as 
the  plaintiff's  assignor,  the  alleged  proper  payee.  The 
result  was  clearly  to  be  foreseen  and  the  negligence  of 
the  plaintiff,  or  its  agent,  is  a  proximate  cause  of  the 
Joss.    It  is  well  settled  that  estoppel  is  a  valid  defense 


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54  Block  v.  Bacon  Coal.  Co. 

Supreme  Court,  December,  1920.  [Vol.  114. 

to  an  action  resting  on  a  forgery.  Heffner  v.  Dawson, 
63  111.  403;  Kuriger  v.  Joest,  22  Ind.  App.  633; 
Corwith  First  State  Bank  v.  Williams,  143  Iowa,  177 ; 
Ca^co  Bank  v.  Keene,  53  Maine,  103 ;  Gluckman  v.  Dar- 
ling, 85  N.  J.  L.  457 ;  Blodgett  v.  Webster,  24  N.  H.  91 ; 
Cohen  v.  Teller,  93  Penn.  St.  123 ;  Murphy  v.  Estate  of 
Ski/nner,  160  Wis.  554;  National  Bank  of  Commerce 
V.  First  National  Bank,  152  Pac.  Repr.  596.  As 
between  the  plaintiff  and  the  defendant  herein,  it  is 
clear  that  the  plaintiff,  through  whose  fault  the  loss 
occurred,  rather  than  the  defendant,  who  parted  with 
money  in  absolute  good  faith,  should  bear  the  loss. 
The  defendant  is  entitled  to  judgment. 

Judgment  for  defendant. 


Abraham  Block,  Plaintiff,  v.  Bacon  Coal  Company,. 
Respondent. 

(Supreme  Court,  New  York  Trial  Term,  December,  1920.) 

Venue  —  ckanged  to  proper  connty  —  Code  Civ.  Pro.  §  984. 

Where  after  a  jury  had  been  impaneled  for  the  trial  of  an 
action  brought  in  the  county  of  New  York  the  court,  upon 
learning  that  the  cause  of  action  arose  and  both  parties  resided 
in  the  county  of  Kings,  refuses  to  try  the  case  in  view  of  sec- 
tion 984  of  tile  Code  of  Civil  Procedure,  defendant's  motion  to 
transfer  the  cause  to  Kings  county  will  be  granted. 

It  seems  that  the  court  had  power  of  its  own  motion  to  sum- 
marily order  the  trial  of  the  case  in  the  county  of  Kings. 

Motion  to  change  place  of  trial. 

David  M.  Finck  (Jacquin  Frank,  of  counsel),  for 
plaintiff. 

William  Dike  Eeed,  for  defendant. 


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Block  v.  Bacon  Coal  Co.  55 

Misc.].  Supreme  Court,  December,  1920. 

Ford,  J.  This  is  one  of  that  class  of  cases  which  by 
section  984  of  the  Code  **  must  be  tried  in  the  county, 
in  which  one  of  the  parties  resided,  at  the  commence- 
ment thereof/' 

A  jury  had  already  been  impaneled  before  the  court 
learned  that  the  cause  of  action  arose  and  both  par- 
ties resided  in  the  county  of  Kings.  Thereupon  the 
trial  justice  declared  that  he  would  not  try  the  case. 
Up  to  this  point  both  counsel  had  proceeded  in  evi- 
dent willingness  to  have  the  trial  in  New  York  county 
and  it  was  only  after  the  court's  express  refusal  to 
try  the  case  that  defendant's  counsel  moved  that  it 
be  sent  to  Kings,  the  proper  county,  for  trial. 

This  exact  narrative  is  given  because  I  desire  that 
there  be  no  misapprehension  as  to  the  precise  grounds 
upon  which  the  order  transferring  the  case  is  based. 
It  was  essentially  upon  the  motion  of  the  court  itself 
that  the  order  was  made  although  in  form  upon  the 
motion  of  defendant's  counsel. 

This  puts  the  case  on  all  fours  with  Phillips  v.  TieU 
jen,  108  App.  Div.  9,  which  was  decided  by  the  Appel- 
late Division  of  the  second  department  in  1905.  That 
case  held  squarely  that  the  trial  court  might  not  of 
its  own  motion  send  the  case  to  the  proper  county. 

That  rule  has  never  been  expressly  adopted  in  this 
department  so  far  as  I  can  discover,  although  the 
Phillips  Case,  supra,  was  mentioned  in  Cronin  v.  Ma/n- 
hattan  Transit  Co.,  124  App.  Div.  543,  a  first  depart- 
ment decision,  wherein  the  court  pointed  out  that  the 
rule  laid  down  by  the  second  department  did  not  apply 
to  the  case  then  under  consideration. 

In  Goldf elder  v.  Greenherg,  189  App.  Div.  184,  the 

second  department  so  far  as  can  be  gathered  from  the 

brief  opinion  seems  to  have  departed  from  the  rule 

laid  down  in  the  Phillips  Case,  supra. 

The  Goldf  elder  Case,  supra,  was  brought  in  West- 


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56  Block  v.  Bacon  Coal  Co. 

Supreme  Court,  December,  1920.  [Vol.  114. 

Chester  county  in  which  neither  party  resided.  De- 
fendant served  the  demand  required  by  section  986 
of  the  Code  but  failed  to  comply  with  the  further  pro- 
vision that  a  notice  of  motion  be  served  within  the 
time  specified  for  a  change  of  the  place  of  trial  to  the 
proper  county.  Such  a  motion  was  made  afterwards 
and  was  opposed  upon  the  sole  groimd  that  it  had  not 
been  made  within  the  statutory  time.  The  motion  was 
denied  and  the  Appellate  Division  in  reversing  held: 
**  Section  986  of  the  Code  is  directory  merely,  and 
the  court  had  power  under  section  987  to  change  the 
place  of  trial  although  no  demand  had  been  made. 
{Cronin  v.  Manhattan  Transit  Co.,  124  App.  Div.  543, 
544.)  Westchester  county  is  not  the  proper  county 
for  the  trial  of  this  action.  (Code  Civ.  Proc.  §  984.) 
It  was  a  mistake  to  bring  it  there,  and  the  court  is  not 
without  power  to  correct  it.  The  motion  ought  to  have 
been  granted,  and  it  follows  that  the  order  must  be 
reversed. '^ 

An  examination  of  the  cases  which  discuss  the  ques- 
tion of  a  change  in  the  place  of  trial  reveals  that  they 
almost  uniformly  consider  it  from  the  point  of  view 
of  the  statutory  right  of  the  litigant  to  have  the  place 
changed. 

The  rights  of  the  public  and  of  the  taxpayer  have 
not  received  due  consideration  as  it  seems  to  me. 

There  has  grown  up  among  lawyers  the  practice  of 
bringing  actions  for  trial  in  New  York  county 
although  the  cause  of  action  arose  and  both  parties 
resided  in  an  adjacent  county  or  counties. 

The  instant  case  grew  out  of  an  accident  which 
occurred  in  Kings  county.  Both  parties  and  all  the 
witnesses  resided  there.  Merely  because  his  office  is 
in  New  York  county  or  for  some  other  trivial  reason, 
the  lawyer  brings  the  case  for  trial  to  our  crowded 
courts. 


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NoRTHWAY  Holding  Co.,  Inc.,  v.  Parker.       57 
Misc.]  Supreme  Court,  December,  1920. 

Usually  the  opposing  lawyer  is  quite  content 
because  his  office  is  also  here.  Practically  the  inter- 
ests of  the  litigants  and  the  convenience  of  witnesses 
are  not  considered.  As  a  matter  of  fact  it  is  of  small 
moment  to  the  parties  where  the  case  is  tried  for  the 
same  brand  of  justice  is  handed  down  in  either  case. 

But  why  should  either  lawyer  or  litigant  be  permit- 
ted to  lift  the  burden  of  the  trial  from  one  county  and 
impose  it  upon  another  T 

The  statute  says  the  case  mtist  he  tried  in  the 
county  where  the  litigants  or  one  of  them  resided.  I 
believe  the  court  has  the  power  of  its  own  motion  to 
summarily  order  such  a  case  to  the  county  where  it 
properly  belongs  and  to  imjwse  upon  that  county  the 
burden  of  disposing  of  its  own  lawsuits.  The  order 
transferring  the  case  to  Kings  county  has  been  signed. 

Motion  granted. 


NoRTHWAY  Holding  Company,  Inc.,  PlaintiflF,  v,  Alice 
A.  Parker,  Defendant. 

(Suprone  Court,  Tioga  Special  Term,  December,  1920.) 

Landlord  and  tenant  —  action  by  corporation  landlord  for  rent  of 
an  apartment  in  the  city  of  New  York  —  motion  to  change 
place  of  trial  from  county  of  plaintiff's  residence  to  New 
York  county  granted  as  matter  of  right  —  motion  to  change 
▼enne  for  convenience  of  witnesses  not  waived  by  former 
motion. 

Justice  is  not  promoted  by  permitting  a  landlord,  incorpo- 
rated to  own  and  rent  a  building  in  the  city  of  New  York,  to 
bring  an  action  for  a  small  amount  of  rent  in  a  county  wherein 
it  claims  a  residence  remote  from  the  county  where  the  leasing 
was  made,  and  in  which  all  persons  interested  and  their  neces- 
sary witnesses  have  their  actual  residence  and  may  easily  resort 
to  the  courts. 


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58       NoBTHWAY  Holding  Co.,  Inc.,  v,  Parker. 

Supreme  Court,  December,  1920.  [Vol.  114. 

Where  in  an  action  brought  by  such  a  landlord  to  recover 
rent  for  an  apartment  in  the  city  of  New  York  for  the  months 
of  October  and  November,  1920,  under  a  written  lease  entered 
into  on  September  20,  1920,  the  answer  pleads  the  defenses 
permitted  by  chapter  944  of  the  Laws  of  1920  which  went 
into  effect  September  27,  1920,  and  it  is  plainly  apparent  that 
the  venue,  as  laid,  was  to  vex  the  defendant  and  make  difiAcult 
^er  opportunity  for  defense,  her  motion  to  change  the  place  of 
trial  to  the  county  of  New  York  will  be  granted  as  a  matter 
of  right. 

The  defendant  in  demanding  that  the  venue  be  changed  as  a 
matter  of  right  did  not  thereby  waive  her  right  to  make  a 
motion  to  change  the  place  of  trial  on  the  ground  that  the 
conveniences  of  witnesses  and  the  ends  of  justice  would  be 
promoted. 

Motion  by  defendant  to  change  place  of  trial. 

Thomas  P.  McCormick,  for  motion. 

Bond  &  Babson,  opposed. 

Davis,  J.  The  defendant  is  moving  to  change  the 
place  of  trial  from  Tio2:a  county  to  New  York  county. 

The  plaintiflF  has  brought  this  action  to  recover  rent 
for  the  months  of  October  and  November,  1920,  due, 
as  it  claims,  under  a  written  lease  entered  into  between 
the  parties  September  twentieth  preceding,  for  the 
rent  of  an  apartment.  The  defendant,  availing  her- 
self of  the  defenses  permitted  by  chapter  944  of  the 
Laws  of  1920,  which  became  a  law  September  twenty- 
seventh,  alleges  that  the  rent  has  been  increased  from 
$166.67  per  month  the  preceding  year,  to  $250  per 
month,  and  that  the  rent  accruing  under  the  agree- 
ment is  unjust  and  unreasonable,  and  that  the  agree- 
ment is  oppressive. 

The  plaintiflF,  a  corporation,  has  stated  in  its  certifi- 
cate of  incorporation  that  its  principal  office  and  place 
of  business  is  in  the  village  of  Owego,  Tioga  county, 


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NoBTHWAY  Holding  Co.,  Inc.,  v.  Pabeeb.       59 

Misc.]  Supreme  Court,  December,  19*20. 

and  claims  its  residence  there.  The  apartment  in 
question  is  situated  in  the  city  of  New  York;  the 
defendant  resides  in  the  city  of  New  York,  and  the 
main  office  from  which  the  officers  of  the  plaintiff 
transact  all  their  business  is  in  that  city.  The  plain- 
tiff has  a  nominal  office  in  the  village  of  Owego  in 
an  office  occupied  by  a  firm  of  attorneys,  one  of  whom 
has  been  formally  appointed  agent  in  charge  of  the 
office  of  defendant,  upon  whom  process  may  be  served. 
It  does  not  appear  that  this  agent  has  any  particular 
duties  to  perform.  No  officer,  director  or  stockholder 
resides  in  the  village  of  Owego  or  county  of  Tioga, 
nor  does  it  own  any  property  or  transact  any  business 
there.  It  says  that  it  pays  taxes  in  Tioga  county.  It 
would  be  interesting  to  know  how  much  tax  it  pays, 
in  the  absence  of  any  property  interest  in  that  county, 
and  by  whom  it  is  expected  to  be  sued,  so  process 
could  there  be  served  on  its  agent  in  its  office,  but  the 
plaintiff's  affidavits  are  discreetly  silent  on  these 
subjects. 

This  residence  is,  of  course,  merely  nominal  and 
fictitious.  The  plaintiff,  in  designating  the  location  of 
its  principal  office  in  its  certificate  of  incorporation, 
evidently  relied  on  decisions  of  the  courts  to  the  effect 
that  the  residence  of  corporations,  for  the  purpose  of 
taxation  and  in  the  bringing  of  actions  by  or  against 
a  corporation  in  good  faith,  is  deemed  to  be  in  the 
county  named  in  the  certificate  of  incorporation  as 
containing  its  principal  office.  See  Oswego  Starch 
Factory  Co.  v.  Dolloway,  21  N.  Y.  449 ;  People  ex  rel. 
Knick.  Press  v.  Barker,  87  Hun,  341;  Rossie  Iron 
Works  V.  Westhrook,  59  id.  345;  General  Baking  Co. 
V.  Daniell,  181  App.  Div.  501. 

The  pui'pose  of  the  plaintiff,  in  view  of  the  facts 
stated,  is  obvious,  to  wit:  it  has  established  a  nominal 
residence  in  a  county  far  distant  from  New  York  city 


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60       NoETHWAY  Holding  Co.,  Inc.,  v.  Parker. 

Supreme  Court,  December,  1920.  [Vol.  114. 

where  it  owns  its  property  and  transacts  its  business 
of  renting  apartments  to  tenants,  so  that  in  bringing 
actions  for  small  amounts  due  for  rent,  it  may  compel 
tenants  to  be  at  great  inconvenience  and  expense  in 
making  their  defenses  to  any  claim,  however  exorbi- 
tant, made  by  the  landlord. 

In  the  decisions  to  which  I  have  referred,  the  courts 
were  not  dealing  with  a  situation  such  as  is  presented 
here.  They  were  dealing  with  corporations  which  had, 
in  apparent  good  faith  and  for  some  legitimate  pur- 
pose, established  their  oflSce  and  principal  place  of 
business  in  one  locality  and  had  thereafter  engaged 
in  some  line  of  manufacturing  or  mercantile  business 
having  large  executive  oflSces  elsewhere.  There  is  a 
vast  difference  between  a  bona  fide  residence  and  one 
established  solely  for  bringing  suits  in  the  county  of 
such  residence  on  causes  of  action  which  arose,  where 
the  defendants  reside,  in  a  distant  county.  I  should 
not,  therefore,  feel  bound  by  such  decisions  which  may 
readily  be  distinguished  in  principle  from  the  case 
under  consideration,  if  it  were  thereby  necessary  to 
defeat  the  plain  and  apparent  purpose  of  the  plaintiff 
to  harass  and  annoy  its  tenants  and  to  prevent  the 
defendant  and  others  similarly  situated  from  having 
a  fair  day  in  court ;  or  if  this  was  the  only  legal  ques- 
tion involved  in  this  controversy  and  its  determina- 
tion was  necessary  for  the  maintenance  of  the  rights 
of  the  defendant.  Such  practices  of  using  apparently 
legal  means  for  an  illegitimate  and  unworthy  pur- 
pose are  not  to  be  encouraged,  but  rather  to  be  dis- 
couraged by  the  courts. 

But  there  is  also  presented  another  question  on 
the  motion  and  that  is  whether  the  place  of  trial 
should  be  changed  for  the  convenience  of  witnesses 
and  to  promote  the  ends  of  justice. 

The  defendant  by  statute  is  given  the  benefit  of 


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NoRTHWAY  Holding  Co.,  Inc.,  v.  Pabkbe.       61 

Misc.]  Supreme  Court,  December,  1920. 

certain  defenses.  She  says  she  has  necessary  and 
material  witnesses  residing  in  the  city  of  New  York 
to  maintain  them.  I  can  neither  on  this  practice 
motion  anticipate  the  result  of  a  motion  for  judg- 
ment on  the  pleadings,  which  plaintiff's  attorney  says 
he  has  made,  nor  declare  unconstitutional  the  statute 
on  which  defendant  relies  for  her  defense. 

The  ends  of  justice  are  not  promoted  by  permitting 
the  plaintiff,  incorx>orated  to  own  and  rent  a  building 
in  New  York  city,  to  bring  an  action  for  a  small 
amount  of  rent,  in  a  county  wherein  it  claims  resi- 
dence remote  from  the  coimty  where  the  contract  was 
made  and  in  which  all  persons  interested  and  their 
necessary  witnesses  have  their  actual  residence,  and 
may  easily  resort  to  the  court?.  That  the  reason  for 
laying  the  venue  in  Tioga  county  was  to  vex  the  de- 
fendant and  make  diflScult  her  opportunity  for 
defense  is  plain  and  apparent,  and  the  court  cannot 
give  to  the  scheme  any  countenance  or  approval.  The 
action  should  be  tried  where  the  cause  of  action  arose. 
Spanedda  v.  Murphy,  144  App.  Div.  58;  Navratil  w. 
Bohm,  26  id.  460;  d'Beirne  v.  Miller,  35  Misc.  Rep. 
337;  General  Rules  of  Practice,  48. 

The  defendant  in  demanding  that  the  venue  be 
changed  as  a  matter  of  right,  did  not  thereby  waive 
any  right  to  apply  on  other  grounds.  No  demand  was 
necessary  preliminary  to  a  motion  to  change  the  place 
of  trial  on  the  ground  that  the  convenience  of  wit- 
nesses and  the  ends  of  justice  will  be  promoted. 
Larkin  v.  Watson  Wagon  Co.,  68  App.  Div.  86;  2 
Rumsey  Pr.  (2d  ed.)  143.  For  the  reasons  stated  the 
motion  will  be  granted,  with  ten  dollars  costs. 

Motion  granted,  with  ten  dollars  costs. 


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62  People  v.  Giordano. 

Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920.     [Vol.  114. 


People  op  the  State   of   New   Yobk,   Plaintiff,   v. 
Angelo  Giordano,  Defendant. 

(Court  of  General  Sessions  of  the  Peace,  in  and  for  the  County 
of  New  York,  December,  1920.) 

Code  Orim.  Pro.  §§  285,  684  —  motion  after  jndgment  of  convic- 
tion for  inspection  of  grand  jnry  minutes  denied  —  waiver  of 
rights. 

Sections  286  and  684  of  the  Code  of  Criminal  Procedure 
refer  only  to  imperfections  of  form  and  departures  from  the 
form  or  mode  of  procedure  prescribed  by  said  Code,  or  to 
errors  or  mistakes  in  form  or  in  mode  of  procedure,  and  are 
not  broad  enough  to  warrant  disregarding  the  violation  of  a 
constitutional  right. 

After  his  conviction  for  murder  in  the  first  degree,  the 
defendant's  motion  for  an  inspection  of  the  minutes  of  the 
grand  jury  for  the  sole  purpose  of  making  a  motion  to  dismiss 
the  indictment,  on  the  ground  that  there  was  no  evidence  before 
the  grand  jury  to  connect  him  with  the  crime  charged,  except 
that  of  accomplices,  will  be  denied  on  the  ground  that  not 
having  been  made  prior  to  the  judgment  of  conviction  the 
defendant  had  waived  his  right  to  make  the  motion. 

Motion  by  the  defendant,  after  conviction  of  mur- 
der in  the  first  degree  and  appeal  therefrom  to  the 
Court  of  Appeals,  to  inspect  the  minutes  of  the  grand 
jury  for  the  purpose  of  moving  to  dismiss  the  indict- 
ment. 

Martin  W.  Littleton  (Owen  N.  Brown,  of  counsel), 
for  motion. 

Edward  Swann,  district  attorney  (Robert  C.  Taylor, 
of  counsel;  George  N.  Brothers,  with  him  on  the 
brief),  in  opposition. 

NoTT,  J.  On  October  5,  1916,  one  Verrazano 
was    murdered    in    the    county    of    New   York.    On 


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People  v.  Giordano.  63 

Misc.]     Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920. 

May  1,  1918,  the  defendant  was  convicted  of 
murder  in  the  first  degree,  in  that  he  pro- 
cured others  to  murder  Verrazano.  On  May  16, 
1918,  he  appealed  to  the  Court  of  Appeals,  and  end- 
ing that  appeal  has  made  several  motions  for  a  new 
trial  on  the  ground  of  newly  discovered  evidence, 
which  motions  have  been  denied.  106  Misc.  Rep.  235. 
He  now  for  the  first  time  moves  to  inspect  the  min- 
utes of  the  grand  jury  which  indicted  him,  for  the 
purpose,  should  such  inspection  be  granted,  of  sub- 
sequently moving  to  dismiss  the  indictment  on  the 
ground  that  there  was  no  evidence  before  the  grand 
jury,  except  that  of  accomplices,  to  connect  him  with 
the  crime  and  that,  therefore,  he  was  improperly 
indicted  and  his  constitutional  rights  invaded.  Peo- 
ple V.  Gle7i,  173  N.  Y.  395. 

Upon  the  trial  testimony  was  given  by  witnesses, 
other  than  those  called  before  the  grand  jury,  which 
the  jury  found  corroborated  the  accomplices,  and 
unless  and  until  the  judgment  of  conviction  is  reversed 
upon  the  ground  that  there  wbjs  no  sufficient  corrobo- 
ration, it  must  be  assumed,  for  the  purposes  of  this 
motion,  that  the  defendant  was  properly  convicted 
and  that  the  corroboration  was  sufficient.  The  ques- 
tion, therefore,  arises  whether  an  indictment  should 
be  dismissed  because  founded  upon  insufficient  evi- 
dence in  a  case  where  the  defendant  has  been  subse- 
quently tried  and  convicted  upon  sufficient  evidence 
and  has  not  attacked  the  sufficiency  of  the  indictment 
until  after  final  judgment.  Had  such  motion  been 
made  prior  to  trial  the  granting  thereof  would  have 
been  no  bar  to  the  finding  of  a  new  indictment  upon 
sufficient  evidence.  But  should  the  motion  be  granted 
after  the  trial  and  conviction  of  the  defendant,  the 
defendant  might  well  claim  a  former  jeopardy  and 
that  he  could  not  be  subsequently  prosecuted  for  the 


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64  People  v.  Giordano. 

Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920.     [Vol.  114. 

same  offense  and  if  that  claim  were  well  founded  it 
would  follow  that  he,  although  convicted  upon  suffi- 
cient evidence,  would  go  free  because  ho  had  delayed 
his  attack  upon  the  indictment  until  it  was  too  late  to 
remedy  its  weakness.  In  my  opinion  this  result  is 
contrary  to  the  ends  of  justice  and  places  a  premium 
upon  delay  and  laches  and  should  not  receive  the  sanc- 
tion of  the  courts  unless  required  by  other  well-set- 
tled principles  of  law. 

The  district  attorney  contends  that  under  sections 
285  and  684  of  the  Code  of  Criminal  Procedure  this 
motion  must  be  denied  for  the  reason  that  the  defend- 
ant has  not  been  prejudiced  because  he  was  ultimately 
convicted  on  proper  evidence.  I  am  of  the  opinion, 
however,  that  those  sections  refer  only  to  imperfec- 
tions of  form  and  departures  from  the  form  or  mode 
of  procedure  prescribed  by  the  Code,  or  to  errors  or 
mistakes  in  form  or  in  mode  of  procedure,  and  are  not 
broad  enough  to  warrant  the  disregarding  of  the  vio- 
lation of  a  constitutional  right. 

I  am,  however,  of  the  opinion  that  the  defendant 
has  waived  his  right  to  make  this  motion  by  not  doing 
so  prior  to  the  imposition  of  final  judgment.  If  it  be 
true  that  there  was  no  testimony  before  the  grand 
jury,  other  than  that  of  accomplices,  connecting 
defendant  with  the  crime,  that  fact  was  as  much 
within  the  defendant's  knowledge  or  his  means  of 
knowledge  at  the  time  of  the  imposition  of  final  judg- 
ment as  it  is  today  and  there  is  no  reason  shown  why 
the  motion  was  not  made  before  judgment  or  the 
indictment  attacked  at  or  before  the  time  when  the 
defendant  was  called  upon  after  his  conviction  to 
state  why  judgment  should  not  be  imposed  upon  him. 
The  general  rule  is  stated  as  follows,  by  the  Court  of 
Appeals,  in  People  v.  Willett,  213  N.  Y.  368,  375: 
**  Unless  a  motion  founded  upon  the  indictment  and 


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Waters  v.  Beau   Site  Co.  65 

Misc.]     Court  of  Gen.  Sessions,  N.  Y.  County,  December,  1920. 

the  insufficiency  thereof  is  made  before  or  at  the  time 
when  the  defendant  is  called  for  judgment,  the  objec- 
tions thereto  are  waived.*'  Citing  People  v.  D'Argen- 
cour,  95  N.  Y.  624;  People  v.  Wiechers,  179  id.  459. 

The  defendant,  however,  claims  that  his  constitu- 
tional right  has  been  invaded  and  that  the  doctrine  of 
waiver  does  not  apply  in  such  case.  While  it  has  been 
held  that  a  defendant  can  not  waive  a  constitutional 
objection  to  the  power  or  jurisdiction  of  the  court  to 
try  him  (Sec  People  v,  Cancemi,  18  N.  Y.  128),  other 
constitutional  rights  of  the  defendant  may  be  waived 
as  well  as  statutory  rights.  See  Dodge  v.  Corn  elms, 
1G8  N.  Y.  242,  and  cases  cited  therein.  See,  also, 
People  V.  Rathhufiy  21  Wend.  509;  Pierson  v.  People, 
79  N.  Y.  424;  People  v.  Cosmo,  205  id.  91;  People  v. 
Toledo,  150  App.  Div.  403. 

While  this  motion  is  not  for  the  dismissal  of  the 
indictment  but  for  the  inspection  of  the  minutes  of  the 
grand  jury,  yet,  as  it  is  made  upon  the  sole  ground 
that  it  is  for  the.  purpose  of  subsequently  moving  to 
dismiss,  it  would  be  futile  to  grant  the  motion  if  the 
subsequent  motion  to  dismiss  must  inevitably  be 
denied. 

For  these  reasons  this  motion  is  denied. 

Motion  denied. 


Hilda  J.  Waters,  Plaintiff,  v.  Beau  Site  Company, 

Defendant. 

(City  Court  of  the  City  of  New  York,  Trial  Term,  December,  1920.) 

BailmentB  —  action  to  recover  value  of  contents  of  a  trunk  — 
evidence  —  when  complaint  dismissed. 

Plaintiff  who,  with  her  husband,  was  about  to  leave  defend- 
ant's hotel  where  they  were  guests,  with  the  intention  of  return- 
ing in  a  few  days,  upon  beine:  informed  by  defendant's  man- 

5 


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66  Waters  v.  Beau  Site  Co. 


City  Court  of  New  York,  December,  1920.     [VoL  114. 

ager  that  their  trunks  would  be  taken  care  of  during  her 
absence,  a  trunk  in  which  among  other  articles  was  placed  a 
diamond  pendant  valued  at  more  than  $1,000  was  delivered  to 
defendant  for  storage.  When  on  plaintiff's  return  the  trunk 
was  sent  to  her  room  and  opened  the  pendant  was  missing. 
In  an  action  to  recover  its  value  it  was  conceded  that  the 
relation  between  the  parties  was  that  of  bailor  and  bailee,  but 
there  was  no  evidence  that  defendant  had  actual  notice  that 
the  pendant  was  in  the  trunk.  Held,  that  the  dismissal  of  the 
complaint  upon  the  ground  that  defendant,  by  becoming  the 
bailee  of  the  trunk  and  its  contents,  was  not  required  to  and 
did  not  assume  that  the  trunk  contained  articles  other  than 
those  ordinarily  contained  in  trunks,  and  that  in  consequence 
there  was  no  bailment  as  to  the  pendant,  was  proper. 

Action  to  recover  the  value  of  the  contents  of  a 
trunk. 

Everett,  Clarke  &  Benedict,  for  plaintiff. 

Nadal,  Jones  &  Mowton,  for  defendant. 

Callahan,  J.  Plaintiff  and  her  hrasband  had  been 
guests  at  the  Hotel  Biltmore,  New  York  city,  con- 
ducted by  defendant.  They  were  about  to  leave  the 
hotel  with  the  intention  of  returning  in  a  few  days. 
Upon  inquiry  she  was  informed  by  the  assistant  man- 
ager of  defendant  that  her  trunks  would  be  taken  care 
of  during  her  absence.  Her  testimony  is  that  he  stated 
that  the  hotel  maintained  a  safe  place  for  trunks, 
describing  a  certain  storage  room  with  iron  doors 
which  were  always  kept  locked,  and  that  many  wealthy 
guests  of  the  hotel  left  their  trunks  with  valuable  con- 
tents in  the  care  and  custody  of  the  hotel  while  they 
were  away.  Plaintiff  and  her  husband  further  testi- 
fied that  they  thereupon  packed  two  trunks,  in  one  o? 
which  was  placed  a  diamond  pendant  valued  at  over 
$1,000.  This  trunk  was  thereafter  delivered  to  defend- 
ant for  storage  during  plaintiff's  absence.    Upon  her 


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Watebs  v.  Beau  Site  Co.  67 

Miflc]         City   Court   of  New  York,   December,   1920. 

return  the  trunks  were  sent  to  her  room  and  upon 
opening  them  she  discovered  that  the  contents  had 
been  tampered  with  and  that  the  pendant  was  missing. 
This  action  is  brought  to  recover  its  value.    It  was 
conceded  upon  the  trial  that  the  relation  between  the 
I)artie6  as  to  the  stored  property  was  that  of  bailor 
and  bailee  and  not  that  of  innkeeper  and  guest.    Upon 
the  foregoing  facts  the  court  dismissed  the  complaint 
upon  the  ground  that  the  defendant,  by  becoming  a 
bailee  of  plaintiff's  trunks  and  their  contents,  was  not 
required  to  and  did  not  assume  that  the  same  con- 
tained articles  other  than  those  ordinarily  contained 
in  trunks  and  that,  consequently,  there  was  no  bail- 
ment as  to  the  pendant.    There  was  no  testimony  in 
the  case  to  show  that  defendant  had  actual  notice 
of  the  fact  that  this  valuable  piece  of  jewelry  was 
in  plaintiff's  trunk.     Nor  is  it  so  usual  or  custom- 
arj^  to  place  articles  of  this  character  in  trunks  as 
to  warrant  or  require  any  assumption  on  defendant's 
part  that  the  trunk  contained  the  jewel  in  question. 
In  such  case  there  is  no  contract  of  bailment,  for  the 
bailee  cannot  by  artifice  be  compelled  to  assume  a 
liability  greater  than  he  intended.    Edwards  Bailm. 
(3d  ed.)  §  49.    It  does  not  follow  that  there  must  be  an 
intention  to  impose  upon  the  bailee.    It  is  sufficient  if 
such  is  the  practical  effect  of  the  bailor's  conduct.    By 
the  use  of  the  word  artifice  it  is  not  intended  to  convey 
that  plaintiff  had  any  motive  or  design  inconsistent 
with  absolute  honor  and  fair  dealing.    A  better  char- 
acterization would  probably  be  a  concealment  without 
design.    It  is  true  that  plaintiff  testified  that  in  her 
conversation  with  defendant's  manager  she  referred 
to  her  trunks  as  baggage  or  luggage,  but  the  mere  use 
of  this  expression  is  insufficient  to  give  notice  to  the 
defendant  that  the  trunks  contained  articles  of  a  char- 
acter different  from  those  ordinarily  placed  in  trunks 


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68  Waters  v.  Beau  Site  Co. 

City  Court  of  New  York,  December,  1920.     [Vol.  114. 

left  for  storage.  Luggage  and  baggage  are  essentially 
the  bags,  trunks,  etc.,  that  a  passenger  takes  with  him 
for  his  x)ersonal  use  or  convenience  with  reference  to 
his  necessities  or  to  the  ultimate  purpose  of  his  jour- 
ney, and  in  this  connection  it  has  been  held  that,  within 
limits,  the  same  include  such  jewelry  as  may  be 
adapted  to  the  tastes,  habits  and  social  standing  and 
be  necessary  for  the  convenience,  use  and  enjoyment 
of  the  traveler  either  while  in  transit  or  temporarily 
staying  at  a  particular  place.  The  trunks  here  were 
to  be  stored  and  not  to  be  used  as  luggage  or  baggage, 
and  for  this  reason  it  is  apparent  that  the  above  rule 
respecting  jewelry  is  not  applicable.  Plaintiff  insists 
that  jewelry  of  the  kind  ordinarily  worn  upon  the  per- 
son is  part  of  a  woman 's  baggage  and  that  defendant 
by  undertaking  to  care  for  plaintiff's  baggage  became 
a  bailee  of  the  diamond  pendant  contained  in  one  of 
the  trunks,  and  cites  in  support  of  this  contention  the 
case  of  Sherman  v.  Pullman  Co.,  79  Misc.  Rep.  52; 
Borden  v.  N.  ¥.  C.  R.  R.  Co.,  98  id.  574,  and  Has- 
brouck  v.  New  York  C.  <&  H.  R.  R.  R.  Co., 
202  N.  Y.  363.  Were  it  admitted,  or  did  the 
facts  authorize  a  finding  that  the  trunks  of  plain- 
tiff were  baggage  or  luggage,  the  contention  would 
have  much  force.  All  the  cases  cited,  however, 
were  against  conunon  carriers,  where  the  lost  jew- 
elry was  carried  by  the  plaintiffs  as  part  of  their  bag- 
gage as  passengers  and  they  were  entitled  to  have 
same  safely  transported  by  the  defendants  under  the 
contract  of  transportation.  The  sole  question  in  each 
of  said  cases  was  whether  the  personal  jewelry  con- 
stituted articles  of  baggage.  In  the  instant  case,  as 
is  above  set  forth,  the  trunks  were  not  baggage  or  lug- 
gage. Plaintiff  also  claims  that  even  though  defend- 
ant may  not  have  been  informed  of  the  presence  of  the 
pendant  in  the  trunk,  it  would  nevertheless  be  liable 


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Waters  ?*.  Beau   Site  Co.  69 

Misc.]         City    Court   of  New   York,   December,   1920. 

in  an  action  for  breach  of  the  contract  of  bailment  if 
the  pendant  were  stolen  by  one  of  the  employees  of 
defendant,  and  that  testimony  in  the  case  made  it 
reasonably  plain,  or  at  least  permitted  the  inference, 
that  the  pendant  was  stolen  by  one  of  defendant's 
employees.     For  this  reason  it  is  asserted  the  case 
should  have  been  submitted  to  the  jur>'.    In  support 
of  this  contention  the  case  of  Heuman  v.  Powers  Co., 
226  X.  Y.  206,  is  cited.    The  decision  in  the  Heuman 
ease  is  based  primarily  on  the  fact  that  the  defendant, 
a  cpnmion  carrier,  was  obligated  to  safely  carry  plain- 
tiff's goods,  and  that,  notwithstanding  the  fact  that 
plaintiff  signed  a  memorandum  stipulating  to  a  limi- 
tation of  defendant's  liability  to  fifty  dollars,  such 
memorandum  referred  only  to  defendant's  responsi- 
bility as  a  carrier  and  did  not  include  the  misfeasance 
or  non-feasance  of  the  carrier  or  its  employees.    In 
that  case  it  was  conceded  that  the  jewelry  was  stolen 
by  defendant's  employees.     It  was  further  stated, 
though  not  necessary  to  a  decision,  that  the  failure  of 
plaintiff  ta  disclose  to  defendant  the  fact  that  there 
was  a  safe  in  the  cabinet  of  plaintiff  containing  valua- 
ble articles  did  not  relieve  defendant  from  liability 
for   its   own   acts    or    those    of   its    servants   which 
amounted  to  a  misfeasance.    It  clearly  appears,  how- 
ever, by  reference  to  the  opinion  of  the  Appellate 
Division  in  the  Heuman  case  that  '*  one  of  the  arti- 
cles to  be  moved  and  which  was  apparently  in  full 
sight  of  defendant's  representative  at  the  time  the 
contract  was  made  or  the  order  given  was  ^  small 
safe."    In  the  instant  case,  as  above  stated,  there  was 
absolutely  nothing  to  indicate  to  defendant  the  pres- 
ence of  valuable  jewelry  in   the  trunks  of  plaintiff. 
Somewhat  analogous  to  the  present  ease  is  Rohin  v. 
Colaizzi,  101  Misc.  Rep.  298,  where  plaintiff  visited 
defendant's  restaurant  with  an  escort  and  handed  her 


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70  Waters  v.  Beau  Site  Co. 

City  Court  of  New  York,  December,  1920.     [Vol.  114. 

pocketbook,  which  had  in  it  eleven  dollars  in  bills  and 
a  diamond  ring,  to  her  escort,  and  her  escort  put  the 
pocketbook  in  his  pocket  and  checked  his  overcoat  in 
the  coatroom.  When  he  later  asked  for  his  coat  the 
coat  was  returned  to  him,  but  the  pocketbook  was 
gone.  The  court  said:  **  The  question  involved  in 
this  case  is,  under  the  circumstances  here  disclosed, 
did  the  defendant's  intestate  become  the  bailee  of  the 
lost  pocketbook  and  its  contents!  None  of  the  cases 
upon  the  subject  relied  upon  by  the  plaintiff  hold  the 
defendant  in  such  an  action  liable  as  bailee,  unless  he 
knew  the  lost  article  was  in  his  possession  or  unless  the 
article  which  he  did  receive  was  of  such  a  character 
that  the  presence  of  the  lost  article  or  articles  of  a 
similar  nature  might  be  presumed."  Similar  cases 
are  Barnes  v.  Stern  Bros.,  89  Misc.  Rep.  385;  Warmser 
V.  Browning,  K.  £  Co.,  187  N.  Y.  87.  The  reasoning  in 
Nathan  v.  Woolverton,  69  Misc.  Rep.  425;  affd.  on 
opinion  below,  147  App.  Div.  908,  seems  to  be  appli- 
cable here.  The  plaintiff  in  that  case  checked  his 
trunk  without  noticing  that  it  contained  anything  but 
ordinary  personal  boggage,  whereas,  in  fact,  it  con- 
tained jewelry  of  considerable  value.  The  court  there 
held,  following  Magnin  v.  Dinsmore,  62  N.  Y.  35,  44, 
that  there  was  no  contract  between  the  passenger  and 
the  carrier  so  far  as  the  jewelry  was  concerned,  the 
defendant  having  no  knowledge  it  was  in  its  pos- 
session. 

Motion  denied. 


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Matter  of  Fitzsimmons.  71 

Misc.]     Surrogate's  Court,  Bronx  County,  December,  1920. 

Matter  of  the  Estate  of  Annie  Fitzsimmons,  Deceased. 

(Surrogate's  Court,  Bronx  County,  December,  1920.) 

Wills  —  constmction  of  —  power  of  sale  —  equitable  conversion  — 
suspension  of  power  of  alienation  —  Real  Property  Law,  §  42. 

A  will  empowered  and  directed  the  executor  to  sell  and  con- 
vey the  real  estate  of  his  testatrix  at  such  time  as  he  might 
deem  proper,  ''but  not  less  than  two  years  after  my  death," 
with  direction  to  distribute  the  proceeds  among  designated 
l^atees.  Held,  that  the  power  of  sale  was  mandatory  and 
worked  an  equitable  conversion  of  the  real  estate. 

While  under  section  42  of  the  Real  Property  Law  the  limi- 
tation of  the  power  of  sale  could  not  be  given  effect,  the  inten- 
tion of  the  testatrix  that  her  property  should  be  sold  and  dis- 
tribution made  as  provided  by  her  will,  could  be  carried  out 
by  eliminating  the  attempted  unlawful  suspension  of  the  power 
of  alienation,  the  limitation  should  be  treated  as  directory 
merely  and  not  as  of  the  essence  of  the  power  of  sale. 

Proceedings  on  construction  of  a  will  under  Code 
of  Civil  Procedure,  section  2615. 

William  A.  Keating,  for  petitioner. 

ScHULz,  S.  This  proceeding  was  brought  under  the 
provisions  of  section  2615  of  the  Code  of  Civil  Pro- 
cedure to  obtain  a  determination  as  to  the  validity, 
construction  and  effect  of  an  attempted  disposition  of 
property  contained  in  paragraph  numbered  '*  3  '*  of 
the  last  will  and  testament  of  the  decedent,  which  is 
as  follows : 

**  3.  I  hereby  direct  and  empower  my  executor  here- 
inafter named  to  sell  and  convey,  at  such  time  as  he 
may  deem  proper,  but  not  less  than  two  years  after 
my  death,  and  at  such  price  as  he  may  deem  adequate, 
the  premises  where  I  now  reside,  and  known  as  644 
East  229th  Street,  Borough  of  the  Bronx,  City  of  New 


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72  Mattbb  op  Fitzsimmonb. 

Surrogate's  Court,  Bronx  County,  December,  1920.     [Vol.114. 

York,  and  to  distribute  the  net  proceeds  thereof  after 
deducting  all  expenses  of  sale,  in  equal  parts,  share 
and  share  alike,  between  Mary  Carney,  Catherine  Car- 
ney, and  Louise  Carney,  all  residing  in  the  said 
Borough  of  the  Bronx,  and  Mary  Flannigan,  Annie 
McNamara,  and  Catherine  Ford,  of  the  City  of  New 
Kochelle,  Westchester  County,  New  York,  and  Mary 
Connel,  residing  on  Sixtieth  Street,  in  the  Borough  of 
Manhattan,  City  of  New  York,  the  said  named  being 
my  cousins.'* 

It  is  contended  that  the  phrase  **  but  not  less  than 
two  years  after  my  death  "  means  that  the  sale  shall 
not  be  made  before  the  expiration  of  two  years  after 
the  death  of  decedent,  and  such  contention  appears  to 
me  to  be  correct. 

The  paragraph  in  question  contains  a  mandatory 
power  of  sale,  coupled  with  a  direction  to  distribute 
the  proceeds  among  the  parties  named  and  works  an 
equitable  conversion.  Salisbury  v.  Slade,  160  N.  Y. 
278;  Greenland  v.  Waddell,  116  id.  234,  240;  Lent  v. 
Howard,  89  id.  169.  If  the  attempted  limitation  were 
given  effect,  the  executor  could  not  exercise  the  power 
of  sale  and  hence  could  not  alienate  the  said  real 
estate  for  a  period  of  two  years  after  the  death  of 
the  decedent;  in  other  words,  the  absolute  power  of 
alienation  would  be  suspended  for  a  period  of  two 
years  which  is  against  the  statute  providing  that  such 
suspension  cannot  be  for  a  longer  period  than  two 
lives  in  being.  Real  Prop.  Law  (Cons.  Laws,  chap. 
50),  §  42;  Matter  of  Hitchcock,  222  N.  Y.  57.  The 
limitation  of  the  power  of  sale,  therefore,  cannot  be 
given  effect. 

The  fact  that  this  is  so,  however,  does  not  neces- 
sarily destroy  the  provisions  of  the  will  of  which  it  is 
a  part.  The  courts  lean  in  favor  of  the  preservation 
of  such  valid  parts  of  a  will  as  can  be  separated  frotu 


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Matteb  of  Beekman.  73 


Misc.]      Surrogate's  Court,  Nassau  County,  December,  1920. 

those  that  are  invalid  without  defeating  the  general 
intent  of  the  testator.  Matter  of  Hitchcock,  supra. 
Where  the  parts  of  a  will  are  so  intermingled  that  the 
valid  cannot  be  separated  from  the  invalid,  the  will 
must  fail,  but  when  it  is  possible  to  eliminate  the 
invalid  provisions  and  leave  the  valid  ones  intact  and 
to  preserve  the  general  plan  of  the  testator,  such  a 
construction  wdll  be  adopted  as  will  prevent  partial 
or  total  intestacy.  Matter  of  Thaw,  182  App.  Div. 
3G8,  372. 

The  intention  of  the  testatrix  was  that  the  property 
should  be  sold  and  that  the  cousins  should  share  in 
the  proceeds  of  the  sale  of  the  real  estate  in  question 
and  this  can  be  carried  out  after  eliminating  the 
attempted  unlawful  suspension  referred  to.  The  lim- 
itation of  the  powder  of  sale  should  be  treated  as 
directory  merely  and  not  as  of  the  essence  of  the 
power  it&elf.  Mott  v.  Ackerman,  92  N.  Y.  539;  Wal- 
dron  V.  Schlang,  47  Hun,  252.  The  power  of  sale 
when  freed  from  the  provision  w^hich  violates  the  stat- 
ute, may  thus  be  executed  at  any  time,  and  upon  such 
sale,  distribution  may  be  made  as  provided  in  the  will. 
Smith  V.  Chesebrough,  176  N.  Y.  317. 

Decreed  accordingly. 


Matter  of  the  Taxation  under  the  Acts  in  Eelation  to 
Taxable  Transfers  of  the  Property  of  Gerard 
Beekman,  Deceased. 

(Surrogate's  Court,  Nassau  County,  December,  1920.) 

Transfer   tax  —  what    subject  to  —  association  for  beneflt  of  a 
family  not  exempt  —  Tax  Law,  §  221. 

The  "  Beekman  Family  Association "  which  was  incorpor- 
ated under  the  Membership  Corporation  Law  by  members  of 
the   Beekman   family,   including   the  testator,   does   not    come 


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74  Mattes  of  Beekmak. 

Surrogate's  Court,  Nassau  County,  December,  1920.     [Vol,  114. 

within  the  class  of  corporations  entitled  to  an  exemption 
under  section  221  of  the  Tax  Law,  and  property  passing  to 
said  association,  as  residuary  legatee,  is  subject  to  a  transfer 
tax. 

Appeal  from  an  order  assessing  the  transfer  tax. 

Herbert  L.  Fordham,  for  executors,  and  also  for 
Beekman  Family  Association,  appellants. 

Jeremiah  Wood,  for  state  comptroller,  respondent. 

Smith,  Act.  S.  This  is  an  appeal  taken  by  the 
executors  under  the  will  of  the  aibove  named  decedent, 
and  by  the  Beekman  Family  Association,  the  residu- 
ary legatee  and  devisee,  from  the  appraisal  and  the 
order  entered  thereon  and  dated  January  9,  1920. 

If  the  property  passing  under  the  residuary  pro- 
vision of  said  will  is  to  be  wholly  exempt  from  taxa- 
tion, the  reason  for  such  exemption  must  be  that  the 
residuary  legatee  and  devisee  (the  Beekman  Family 
Association),  comes  within  one  of  the  classes  of  cor- 
porations specified  in  section  221  of  the  Tax  Law, 
to  wit:  religious,  educational,  charitable,  missionary, 
benevolent,  hospital  or  infirmary  corporations;  and 
if  not  wholly  exempt,  but  partially  exempt,  then  it 
must  come  within  the  class  of  corporations  entitled, 
under  the  said  section,  to  a  restricted  exemption, 
namely,  a  corporation  organized  for  moral  or  mental 
improvement  of  men  or  women,  or  for  scientific,  liter- 
ary, library,  patriotic,  cemetery  or  historical  purposes-. 

In  order  to  determine  the  character  of  a  corpora- 
tion we  must  look  to  its  charter,  or  in  this  case,  to  its 
articles  of  incorporation.  Matter  of  DePeyster,  210 
N.  Y.  216 ;  People  ex  rel.  Wall  d  H.  St.  R.  Co.  v.  Miller, 
181  id.  328.  This  being  a  well-settled  rule  of  law,  it 
seems  to  me  that  what  the  testator  did  before  his  death 
in  the  way  of  conferring  benefaction  upon  the  Beek- 
man Family  Association  and  what  application  or  use 


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Matteb  of  Beekmak.  75 

Misc.]     Surrogate's  Court,  Nassau  County,  December,  1920. 

the  »aid  association  made  of  siicih  gifts,  and  also  what 
has  been  done  since  the  testator's  death  by  the  direct- 
ors of  said  association,  should  not  be  considered  in 
determining  the  question  now  under  consideration. 

The  Beekman  Family  Association  was  incorporated 
under  the  Membership  Corporations  Law  about  ten 
years  ago  by  seven  members  of  the  Beekman  family, 
including  the  testator.  The  said  testator  was  a  bach- 
elor, and  died  on  November  9, 1918. 

By  the  third  article  of  incorporation  of  said  asso- 
ciation,  memberFhip  was  restricted  and  limited  to 
^*A11  lineal  descendants  of  William  Beekman,  who 
became  in  1647  a  resident  of  New  Amsterdam,  now 
New  York  City,  when  approved  by  a  concurring  vote 
of  not  less  than  five  Directors.''  The  phrase  **  The 
Beekman  Fariuly  "  b}'  said  article  was  made  to  include 
the  wives  and  widows  of  said  lineal  descendants. 

The  objects  of  the  corporation  as  declared  by  its 
articles  of  incorporation,  are  (1)  To  pay  the  expense 
of  preparatory  and  professional  education  or  other 
suitable  education  for  members  of  the  Beekman 
family  as  may  be  designated  and  approved  by  at  least 
five  directors  of  the  corporation;  (2)  To  furnish  pecu- 
niary aid  exclusive  of  loans,  to  such  poor  and  needy 
members  of  the  Beekman  family  as  may  be  designated 
and  approved  by  at  least  five  directors  of  the  corpora- 
tion; (3)  To  receive  and  hold,  collect  and  preserve 
family  portraits,  heirlooms  of  the  Beekman  family, 
and  matter  connected  with  the  history  of  that  family ; 
documents  and  books  relating  to  the  family,  with 
power  to  add  to  and  publish  the  same;  and  to  desig- 
nate and  maintain  a  place  of  deposit  for  receiving, 
holding,  collecting,  preserving  and  exhibiting  these 
portraits,  heirlooms  and  matter  connected  with  the 
history  of  the  family  and  documents  and  books  as  an 
undivided  collection;  (4)  To  care  for  and  maintain, 


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76  Matter  of  Beekman. 

Surrogate's  Court,  Nassau  County,  December,  1920.     [^bl.  114. 

improve  and  embellish  such  burial  lots  or  places  in 
cemeteries,  including  the  erection  of  fences,  monu- 
ments, structures  and  tombs  thereon  in  which  are 
interred  the  members  of  the  Beekman  family,  as  shall 
be  designated  and  approved  by  at  least  five  directors 
of  the  corporation,  provided  that  at  least  one  such 
burial  lot  or  place  shall  always  be  cared  for,  main- 
tained, improved  and  embellished  by  the  corporation ; 
(5)  To  support  and  maintain  and  educate  a  person  or 
persons  other  than  a  member  or  members  of  the  Beek- 
man family  and  contribute  towards  the  maintenance 
of  educational  institutions  otherwise  than  for  the  edu- 
cation of  members  of  the  Beekman  family,  and  to 
contribute  to  charitable  and  benevolent  uses  and  to 
religious  purposes  as  from  time  to  time  the  board  of 
directors  shall  deem  proper  and  desirable;  provided, 
however,  that  no  such  action  as  specified  in  this  sec- 
tion (5)  shall  be  taken  unless  expressly  authorized  by 
the  by-laws  of  the  corporation  and  then  only  by  the 
concurring  vote  of  all  and  at  least  seven  directors. 

It  is  contended  that  the  first  object  above  expressed 
is  educational;  that  the  second  is  charitable,  the  third 
historical,  the  fourth  for  cemetery  purposes  and  that 
the  fifth  is  educational,  charitable,  benevolent,  reli- 
gious and  includes  as  those  who  may  be  the  subject  of 
beneficence,  all  persons  who  are  not  members  of  the 
Beekman  family. 

The  test  of  a  charitable  gift  or  use  and  a  charitable 
corporation  are  the  same.  Matter  of  Rockefeller,  177 
App.  Div.  786-791;  Matter  of  AHman,  87  Misc.  Rep. 
255,  260. 

''  Many  definitions  of  a  charitable  trust  have  been 
formulated,  but  all  the  definitions  that  have  been 
attempted  carry  the  implication  of  public  utility  in 
its  purpose.  *  *  *  If  the  purpose  to  be  attained  is 
personal,  private  or  selfish,  it  is  not  a  charitable  trust. 


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Matter  of  Beekman.  77 

Misc.]     Surrogate's  Court,  Nassau  County,  December,  1920. 

When  the  purpose  accomplished  is  that  of  public  use- 
fulness, unstained  by  personal,  private  or  selfish 
coni^iderations,  itjs  charitable  character  insures  its 
validity."  Matter  of  MacDowell,  217  N.  Y.  454,  460. 
See,  also.  Matter  of  Rockefeller,  supra. 

It  may  well  be  that  the  testator  intended  his  prop- 
erty passing  under  the  residuarj-  clause  of  his  will 
should  be  used  for  charitable  and  educational  pur- 
poses; but  the  prominent  fact  seems  to  me  is  that  the 
subjects  and  objects  of  his  beneficence  were  limited  to 
his  own  kin.  It  is  contended  by  counsel  that  the 
Beekman  family  is  a  clan  and  that  it  includes  a  class 
of  persons  much  larger  than  tliose  usually  included  in 
the  word  *'  family;"  however,  it  does  not  seem  to  me 
that  it  makes  any  difference  whether  the  words 
**  Beekman  family  "  include  a  large  or  small  number 
of  persons  or  whether  those  persons  are  remotely  or 
closely  related  to  the  decedent;  the  fact  is  that  the 
class  referred  to  is  limited  to  the  decedent's  kin.  I 
see  no  reason  why  the  directors  of  the  association,  if 
•  they  so  wished,  could  not  apply  the  property  to  the 
education  of  the  nearest  relatives  of  the  decedent  to 
the  exclusion  of  the  remotest ;  likewise,  I  see  no  reason 
why  the  directors  could  not  furnish  pecunian-  aid  to 
the  nearest  relatives  of  the  deceased  provided  they 
came  within  the  class  of  poor  and  needy,  to  the  exclu- 
sion of  those  remotely  related  to  the^  decedent. 

The  third  object,  as  above  expressed,  no  doubt  is 
historical.  It  is  also  genealogical,  but  like  the  first 
two  objects  is  confined  exclusively  to  the  family  of  the 
decedent  and  has  no  public  aspect. 

The  fourth  object,  it  is  true,  was  intended  for  ceme- 
tery purposes,  but,  like  the  foregoing  provisions,  is 
private  and  relates  solely  to  the  Beekman  family. 

The  fifth  object  includes  a  very  broad  class.  The 
fact  is,  however,  that  it  is  not  necessary  that  one  dollar 


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78  Matteb  of  Beekman. 

Surrogate's  Court,  Nassau  County,  December,  1920.     [Vol.  114. 

of  the  property  passing  under  the  residuary  clause  of 
teste  tor 'e  will  may  e\or  be  applied  pursuant  to  the 
provisions  of  section  5 ;  in  fact,  it  would  seem  that  the 
incorporators  intended  to  make  it  difficult  to  apply  any 
of  the  funds  of  the  corporation  for  purposes  which 
did  not  relate  to  the  Beekman  family;  furthermore, 
the  educational  institutions  there  referred  to  might 
include  private  schools. 

Counsel  for  the  appellant  has  cited  as  his  chief 
authority  for  his  contention,  Matter  of  Rockefeller, 
223  N.  Y.  563,  which  in  my  opinion  is  easily  distin- 
guishable from  this  case.  In  that  case  the  character 
of  the  corporation  under  consideration  as  shown  by  its 
charter,  was  **  for  the  purpose  of  receiving  and  main- 
taining a  fund  or  funds  and  applying  the  income  and 
principal  thereof  to  promote  the  welfare  of  mankind 
throughout  the  world,'*  and  in  no  sense  was  the  pur- 
pose of  the  corporation  limited  to  a  family. 

Considering  all  of  the  objects  as  set  forth  in  the 
articles  of  incorporation  of  the  Bookman  Family 
Association,  I  am  forced  to  the  conclusion  that  the 
Beekman  Family  Association  does  not  come  within 
the  class  of  corporations  contemplated  by  the  statute 
as  being  entitled  to  exemption  under  the  Tax  Law. 

I  therefore  conclude  that  the  property  passing 
under  the  residuary  clause  of  the  decedent's  will  is 
not  entitled  to  exemption  and  that  the  order  confirm- 
ing the  report  of  the  appraiser  fixing  the  transfer  tax 
should  be  aflSrmed,  with  costs. 

Order  affirmed,  with  costs. 


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400  Manhattan  Avenue  Cobp.  v.  Danzigeb.    79 
Misc.]      Municipal  Court  of  New  York,  December,  1920. 


400  Manhattan  Avenue  Corporation,  Landlord,  v. 
William  Danziger,  Tenant. 

(Municipal  Court  of  the  City  of  New  York,  Borough  of  Man- 
hattan, Seventh  District,  December,  1920.) 

Pleading  —  when  defense  stricken  ont  —  summary  proceeding  — 


In  a  summary  proceeding  to  dispossess  a  tenant  for  non- 
payment of  rent  of  a  dwelling  apartment  in  the  city  of  New 
York,  he  must,  at  the  time  of  filing  an  answer  pleading  that 
the  rent  is  unreasonable,  deposit  one  month's  rent  as  reserved 
in  the  lease,  and  for  failure  so  to  do,  the  defense,  on  motion 
of  the  landlord,  will  be  stricken  out. 

Summary  proceedings. 

Jacob  I.  Berman,  for  motion. 

Oscar  Englander,  opi)osed. 

Crane,  J.  This  is  a  summary  proceeding  to  recover 
possession  of  an  apartment  used  for  dwelling  pur- 
poses in  the  city  of  New  York  after  default  in  the  pay- 
ment of  rent.  The  tenant  sets  up  the  defense  that 
the  rent  is  unjust,  unreasonable  and  oppressive,  which 
defense  was  created  by  chapter  136  of  the  Laws  of 
1920,  as  amended  by  chapter  944,  Laws  of  1920,  and 
expressly  authorized  in  a  summary  proceeding  based 
upon  a  default  in  the  payment  of  rent  by  chapter  945, 
Laws  of  1920.  The  landlord  moves  to  strike  out  the 
defense  that  the  rent  is  unreasonable  upon  the  ground 
that  the  tenant  did  not  deposit  one  month's  rent  at 
the  time  the  defense  of  unreasonable  rent  was  inter- 
posed. The  tenant  contends  that  as  a  deposit  is  not 
expressly  required  by  chapter  945  of  the  Laws  of  1920 
no  deposit  need  be  made  in  a  summary  proceeding, 
although  he  concedes  that  such  deposit  must  be  made 


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80    400  Manhattan  Avenue  Corp.  v.  Danziger. 


Municipal  Court  of  New  York,  December,  1920.     [Vol.  114. 

as  a  condition  precedent  to  setting  up  the  defense  in 
an  action. 

At  the  outset  it  is  to  be  observed  that  chapter  945 
does  not  create  the  defense.  It  was  created  by  chap- 
ter 136  of  the  Laws  of  1920.  Chapter  945  merely  gives 
express  permission  to  a  tenant  to  set  up  the  defense 
so  created  in  a  summary  proceeding,  and  further  pro- 
vides that  when  the  defense  is  so  interposed  a  bill  of 
particulars  must  be  filed  by  the  landlord,  something 
not  otherwise  required  in  a  summary  proceeding;  but 
the  incidents  of  the  defense,  as  well  as  its  character, 
are  prescribed  by  chapter  136,  as  amended  and  con- 
tinued by  chapter  944;  and  all  matters  of  procedure 
and  all  presumptions  are  applicable  whether  the  pro- 
ceeding be  an  action  for  rent  or  a  summary  proceeding 
based  on  the  non-payment  of  rent.  This  would  be  so 
on  well  known  general  principles,  for  both  statutes 
were  passed  by  the  legislature  in  a  common  scheme  to 
remedy  the  same  evil  and  must  be  read  in  pari  inateria. 
People  ex  rel.  Onondaga  County  Savings  Bank  v.  But- 
ler, 147  N.  Y.  164,  168,  169;  People  ex  rel.  Jackson  v. 
Potter,  42  How.  Pr.  260,  261,  262,  270;  affd.,  47  N.  T. 
375;  Smith  v.  People,  Id.  330,  339. 

But  we  are  not  compelled  to  rely  on  this  principle  of 
construction  of  statutes  for  a  decision  of  this  motion. 
Section  2244  of  the  Code  of  Civil  Procedure,  providing 
for  an  answer  in  a  summary  proceeding,  reads  in 
part:  ^*  Such  defense  or  counterclaim  may  be  set  up 
and  established  [in  a  summary  proceeding]  in  like 
manner  as  though  the  claim  for  rent  in  such  proceed- 
ing was  the  subject  of  an  action.''  Here  is  an  express 
declaration  that  this  defense  of  unreasonableness 
'^  may  be  set  up  *  *"  *  in  like  manner  '*  as  in  an 
action  for  rent.  Therefore  au  the  deposit  is  required 
in  setting  up  the  defense  in  an  action  for  rent,  by  the 
provisions  of  this  section  it  is  required  in  setting  up 


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Matteb  of  McGuire.  81 

Misc.]     Surrogate's  Court,  Bronx  County,  December,  1920. 

the  same  defense  in  a  summary  proceeding.  There 
is  nothing  unreasonable  in  such  a  construction.  The 
Legislature  has  lengthened  the  time  of  the  return  of 
a  precept  so  that  it  shall  be  returnable  in  not  less  tliau 
five  nor  more  than  ten  days.  Laws  of  1920,  chap.  952. 
A  sunMnons  in  the  Municipal  Court  must  be  answered 
in  five  days.  A  jury  trial  may  be  demanded  in  a  sum- 
mary proceeding  just  as  in  an  action,  and  the  delay  inci- 
dent to  the  congested  conditions  in  this  court  is  likely  to 
be  as  great  in  one  case  as  in  the  other.  Each  proceed- 
ing terminates  in  a  warrant  for  the  recovery  of  pos- 
session from  the  occupant.  It  is  entirely  consonant 
with  justice  to  require  the  same  security  for  the  rent 
in  one  case  as  in  the  other. 

Th«  motion  to  strike  out  the  defense  will,  therefore, 
be  granted  unless  within  five  days  after  the  service  of 
the  order  to  be  entered  hereon  the  tenant  deposits 
with  the  clerk  of  this  court  the  rent  rcser\'ed  in  the 
agreement  under  which  he  obtained  possession  of  the 
premises. 

Ordered  accordingly. 


Matter  of  the  Guardianship  of  Francis  S.  McGuibb, 

an  Infant. 

(Surrogate's  Court,  Bronx   County,  December,  1920.) 

Guardians  —  who  may  ht  appointed  —  infants  —  wiUs  —  Code  Oiv. 
Pro.  §  2649. 

Upon  an  application  for  the  appointment  of  a  guardian  of 
the  person  and  estate  of  an  infant,  the  fundamental  and  para- 
mount consideration  must  be  the  welfare  and  beet  interests 
of  the  infant. 

Where  it  is  made  to  appear  that  the  welfare  and  interests  of 
the  infant  will  be  best  served  by  the  appointment  of  some  one 
other  than  the  petitioner,  though  not  a  relative,  all  other  con- 
siderations must  give  way. 
6 


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82  Matter  of  AIcOuire. 

Surrogate's  Court,  Bronx  County,  December,  1920.     [Vol.  114. 

Where  it  appears  that  the  interests  of  an  infant  between 
the  ages  of  thirteen  and  fourteen  years  will  be  best  serv'ed 
by  the  appointment  of  either  his  maternal  grandmother  or  a 
paternal  aunt,  and  the  infant  expresses  a  preference  for  his 
grandmother,  she  will  be  appointed  guardian  of  his  person  anl 
onder  section  2649  of  the  Code  of  Civil  Procedure  the  execu- 
tor and  trustee  under  the  will  of  the  father  of  the  infant  may 
be  appointed  guardian  of  the  infant's  estate. 

Proceedings  on  appointment  of  guardian  for  infant. 

George  H.  Taylor,  Jr.,  for  Maria  L.  0  ^Sullivan, 
petitioner. 

Edward  J.  McGnire,  for  Irving  National  Bank. 

Joseph  L.  Yonng,  for  Lillian  M.  Hynes. 

ScHULz,  S.  Application  is  made  by  the  maternal 
grandmother  of  an  infant  for  her  appointment  as  the 
general  guardian  of  his  person  and  estate.  A  pater- 
nal aunt  opposed  the  same  and  asked  for  her  appoint- 
ment. Upon  the  hearing  the  respondent,  through  her 
counsel,  stated  that  in  view  of  the  infant's  preference 
as  hereinafter  set  forth,  she  would  not  insist  upon  her 
own  appointment  but  would  present  such  evidence  as 
she  had  to  the  court  to  aid  it  in  deciding  what,  under 
all  of  the  circumstances,  is  for  the  best  interests  of  the 
infant. 

No  question  is  raised  as  to  the  eminent  respectabil- 
ity of  any  of  the  parties,  and  I  am  satisfied  that  they 
are  all  actuated  by  the  best  of  motives,  namely,  love 
for  the  infant,  and  a  desire  that  the  action  taken  shall 
be  for  his  good. 

Upon  applications  of  this  character  due  considera- 
tion should  be  given  to  the  relationship  of  the  appli- 
cant to  the  infant  {Ledwith  v.  Ledwith,  1  Dem.  154; 
Smith  V.  Smith,  2  id.  43;  Morehouse  v.  Cooke,  1  Hopk. 


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Matteb  of  McGuibb.  83 


Misc.]     Surrogate's  Court,  Bronx  County,  December,  1920. 

Cli.  226) ;  to  the  wishes  of  the  infant  himself,  if  of 
sufficient  age  and  intelligence  {Osterhoudt  v.  Oster- 
hovdt,  48  App.  Div.  74,  77 ;  Israel  v.  Israel,  38  Misc. 
Bep.  335,  338;  Matter  of  Burdick,  41  id.  346) ;  to  the 
religious  belief  of  the  infant  and  the  applicant 
{Matter  of  Crickard,  52  id.  63,  66 ;  Matter  of  Mancini, 
89  id.  83;  Matter  of  Lamb,  139  N.  Y.  Supp.  685) ;  to 
the  financial  condition  of  the  parties,  and  to  the  pos- 
sible home  surroundings  of  the  infant  in  the  event 
of  the  appointment.  Matter  of  Watson,  10  Abb.  N.  C. 
215;  People  ex  rel.  Brush  v.  Brown,  20  Wkly.  Dig.  516, 

The  fundamental  and  paramount  consideration, 
however,  as  all  of  the  authorities  agree,  must  be  the 
welfare  and  the  best  interests  of  the  infant  {Matter 
of  Gustow,  220  N.  Y.  373;  Matter  of  Lee,  Id.  532;  UlU 
man  v.  Ullman,  151  App.  Div.  419;  People  ex  rel. 
Pruyne  v.  Walts,  122  N.  Y.  238)  and  where  it  appears 
that  the  same  will  be  best  served  by  the  appointment 
of  some  one  other  than  the  petitioner  or  the  respond- 
ent, even  if  that  person  be  unrelated  to  the  infant,  all 
of  the  other  considerations  must  give  way.  Matter 
of  Gustow,  supra;  Matter  of  Vandeivater,  115  N.  Y. 
669;  Holley  v.  Chamberlain,  1  Redf.  333. 

The  petitioning  grandmother  is  nearer  in  relation- 
ship to  the  infant  than  is  the  aunt.  The  infant  is  over 
thirteen  years  and  five  months  old,  so  that  he  is 
almost  of  the  age  when  under  the  Code  (§  2645)  he 
could  have  petitioned  for  his  own  guardian  and  he  is 
a  boy  of  exceptional  intelligence  for  his  years.  It  was 
shown  that  upon  an  inquiry  made  by  the  family,  to 
which  the  petitioner  and  her  daughter  were  invited 
but  at  which  they  were  not  present,  and  in  the  pres- 
ence of  the  respondent  and  other  relatives  who  favored 
the  respondent's  appointment,  the  infant  stated  that 
liis  preference  for  guardian  was  his  grandmother,  the 
ctitioner  herein,  and  upon  his  examination  in  open 


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84  Matter  of  McGuikk. 

Surrogate's  Court,  Bronx  County,  December,  1920.     [Vol.  114. 

court  he  made  the  same  statement.  There  is  no  diflfer- 
enee  in  religious  belief,  and  while  the  financial  condi- 
tion of  the  petitioner  does  not  appear  to  be  as  good 
as  that  of  the  respondent,  I  deem  that  fact  of  no  great 
importance,  taking  into  consideration  the  probable 
amount  available  for  the  infant's  support,  mainte- 
nance and  education.  It  is  true  that  the  petitioner  is 
more  advanced  in  years  than  the  respondent,  it  being 
stated  that  she  is  upAvards  of  seventj^-five  years  old, 
but  she  is  unusually  well  preserved  both  physically 
and  nxentally  and  her  household  consists  of  herself 
and  a  daughter,  the  latter  being  an  aunt  of  the  infant, 
who  for  many  years  was  a  school  teacher. 

As  I  believe  that  the  interests  of  the  infant  would 
be  well  served  by  the  appointment  of  either  the  peti- 
tioner  or  the  respondent,  I  think  that  in  view  of  the 
relationship  and  there  being  no  other  objection  that  T 
deem  decisive,  the  wishes  of  the  infant  should,  as  far 
as  possible,  be  given  effect.  The  application  of  the 
grandmother  will,  therefore,  be  granted  in  so  far  as 
it  is  for  her  appointment  as  guardian  of  the  person 
of  the  infant. 

I  have  been  favorably  impressed  by  the  demeanor 
and  actions  of  the  parties  to  the  proceeding  as  well 
as  by  the  commendable  conduct  of  Dr.  Higgins  and 
the  other  relatives  throughout  this  controversy,  and 
I  bespeak  for  the  infant,  who,  through  a  most  deplor- 
able accident  remains  as  the  sole  representative  of  his 
immediate  family,  a  continuance  of  the  same  love  and 
interest  in  his  welfare  which  was  so  strikingly  mani- 
fest at  the  hearing. 

The  executor  and  trustee  under  the  will  of  the  father 
of  the  infant  states  that  it  intervenes  in  this  proceed- 
ing and  asks  that  it  be  appointed  the  guardian  of  the 
infant's  estate.  The  petitioner  expressed  her  willing- 
ness that  some  one  other  than  herself  be  appointed  in 


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Matteb  of  McGuibb.  85 

Misc.]     Surrogate's  Court,  Bronx  County,  December,  1920. 

that  capacity,  but  questioned  the  advisability  of 
appointing  the  trustee,  and  without  impugning  in  any 
way  the  motives,  good  faith  and  responsibility  of  the 
latter,  suggested  the  advisability  of  appointing  some- 
one else,  fearing  that  there  might,  at  some  time,  be  a 
clash  between  its  interests  as  such  guardian  and  as 
trustee. 

Upon  the  argument  of  the  motion,  I  did  not  have 
the  will  of  the  testator  before  me.    An  examination  of 
the  same  shows  that  the  trustee's  duty  will  be,  among 
other  things,  to  collect  the  income  of  the  trust  fund 
and  apply  the  same  to  the  use  of  this  infant,  so  that  the 
appointment  of  some  corporation  other  than  the  trus- 
tee would  involve  a  payment  by  the  trustee  to  the 
guardian  of  the  estate,  which  in  turn  would  expend  the 
same  for  the  infant's  maintenance,  support  and  edu- 
cation.   The  infant's  estate,  other  than  that  which  he 
receives  through  the  medium  of  the  trust  in  his  father's 
will,  is  stated  to  be  about  $3,500.     To  appoint  some 
other  corporation  would  seem  to  me  to  needlessly  com- 
plicate matters  and  might  perhaps  lead  to  additional 
and  unnecessary  expense  which  can  and  should  be 
avoided.    I  deem  the  possibility  of  a  conflict  of  inter- 
est in  which  the  rights  of  the  infant  would  not  have  the 
full  protection  of  the  court,  so  remote  as  to  be  of  little 
weight  in  reaching  a  conclusion.     The  situation  is  a 
good  deal  like  that  in  Bennett  v.  Byrne,  2  Barb.  Ch. 
216,  219,  where  the  court  said:   **Here  the  appellant 
was  already  the  trustee  of  the  infant,  to  expend  the 
income  of  the  mother's  estate  in  his  support  and  edu- 
cation.   And  the  appointment  of  any  other  person  as 
guardian  might  subject  the  infant  to  the  expense  of 
separate  accounts  of  the  expenditures  for  his  support ; 
the  one  on  the  part  of  the  executor  and  truste.e  of  the 
mother,  who  was  charged  with  the  support  and  educa- 
tion of  the  infant  out  of  the  income  of  the  property 


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86  Matter  of  Keith. 


Surrogate's  Court,  New  York  County,  Januarj%  1921.     [Vol.  114. 

bequeathed  by  her,  and  the  other  by  the  guardian  of 
the  estate  which  came  to  the  infant  directly  from  hia 
father.  It  would  also  be  likely  to  lead  to  collisions 
between  the  executor  and  the  guardian,  as  to  what 
expenditures  were  necessary  and  proper  for  the 
infant,  and  as  to  the  manner  in  which  he  should  be 
brought  up  and  educated.  For  each  would  have  a  dis- 
cretion to  exercise,  upon  the  subject  of  necessary 
expenditures  for  those  purposes.'' 

As  I  have  the  authority  to  appoint  someone  other 
than  the  person  for  whose  appointment  the  petition 
prays  (Code  Civ.  Pro.  §  2649;  Ledwith  v.  Ledwith, 
supra;  Matter  of  Wyvkoff,  67  Misc.  Rep.  1;  Matter  of 
Vandewater,  27  Wkly.  Dig.  314;  appeal  dismissed, 
115  N.  Y.  669)  and  the  petitioner  having  in  effect  con- 
sented to  the  appointment  of  someone  else,  and 
believing  that  the  best  interests  of  the  infant  make 
the  appointment  of  the  trustee  as  such  guardian  advis- 
able, it  will  be  appointed  guardian  of  the  infant's 
estate. 


Decreed  accordingly. 


Matter  of  the  Estate  of  A.  Paul  Keith,  Deceased, 

(Surrogate's  Court,  New  York  County,  January,  1921.) 

Transfer    tax  —  what    subject    to  —  non-residents  —  Tax    Law* 
§  220(3). 

Where  a  non-resident  testator  left  a  taxable  estate  in  this 
state,  the  proper  basis  under  section  220(3)  of  the  Tax  Law 
for  prorating  the  various  amounts  taxable  on  the  transfers 
under  the  will^  is  the  total  amount  of  the  real  and  personal 
property  transferred,  and  where  the  transfer  tax  appraiser 
did  not  include  the  real  estate  in  his  compntations,  the  mi»ttpr 
will  be  remitted  to  him  for  correction. 


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Matteb  or  Keith.  87 

Misc]     Surrogate's  Court,  New  York  County,  January,  1921. 

In  a  transfer  tax  proceeding  the  appraised  value  of  the 
entire  estate  should  be  submitted  under  oath  and  not  in  the 
form  of  a  letter  by  the  attorney  for  the  executors,  setting  forth 
his  estimate  of  such  value. 

Appeal  from  an  order  fixing  the  transfer  tax. 

Maurice  Goodman,  for  executors. 

Lafayette  B.  Gleason  (Schuyler  C.  Carlton,  of  coun- 
sel), for  State  Comptroller. 

Foley,  S.  On  this  appeal  the  question  arises  as  to' 
the  construction  of  section  220,  subdivision  3,  of  the 
Tax  Law.  The  decedent,  a  non-resident,  left  a  net  tax- 
able estate  in  New  York,  fixed  by  the  appraiser  in  his 
report  at  $363,271.60.  In  prorating  the  various 
amounts  taxable  on  the  transfers,  the  appraiser 
adopted  the  ratio  between  the  property  in  New  York 
and  the  entire  personal  estate,  wherever  situated. 
The  executors  claim  that  the  proper  basis  for  com- 
puting this  ratio  is  the  total  amount  of  real  and  per- 
sonal property  transferred.  The  subdivision  provides 
as  follows:  **  Whenever  the  property  of  a  resident 
decedent  or  the  property  of  a  non-resident  decedent 
within  this  state,  transferred  by  will,  is  not  specifically 
bequeathed  or  devised,  such  property  shall,  for  the 
purposes  of  this  article,  be  deemed  to  be  transferred 
proportionately  to  and  divided  pro  rata  among  all  the 
general  legatee®  and  devisees  named  in  said  dece- 
dent's will,  including  all  transfers  under  a  residuary 
clause  of  such  will.''  This  amendment  was  adopted 
to  prevent  the  abuse,  which  existed  before  its  enact- 
ment, by  reason  of  executors  arbitrarily  choosing  to 
pay  certain  legacies  exempt  by  our  law  out  of  the  New 
York  assets.  The  purpose  of  the  legislature  was  to 
provide  for  an  equitable  marshalling  of  the  assets  and 


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88  Matter  of  Keith. 


Surrogate's  Court,  New  York  County,  January,  1921.     [Vol.  114. 

to  prevent  the  efforts  of  executors  '*  to  defeat  the  tax 
or  reduce  its  amount  by  electing  to  devote  particular 
parts  of  the  estate  to  satisfy  particular  legacies/' 
Matter  of  Porter,  67  Misc.  Rep.  19.    The  law  intends 
that  the  property  shall  be  deemed  transferred  propor- 
tionately to  and  divided  pro  rata  among  all  the  lega- 
tees and   devisees  other  than   specific  legatees  and 
devisees.    This  comprehends  the  cash  value  of  both  the 
realty  and  personalty  transferred.    The  comptroller's 
contention  that  the  personal  property  is  primarily 
liable  for  the  payment  of  legacies  has  no  application 
to  this  estate,  for  all  the  property  is  disposed  of  by 
the  will.    His  construction  would  again  create  the  dis- 
crimination sought  to  be  eured^    Such  discrimination, 
however,  would  be  exercised  by  the  state  and  not  by 
the  representatives  of  the  estate.    The  use  of  the  word 
**  devisees  '^  is  significant  as  showing  a  clear  legisla- 
tive intent  to  include  the  passing  of  real  estate.    The 
fallacy  of  the  method   of  computation  used  by  the 
appraiser  is  apparsnt,   because  the  amount  of  the 
transfer  passing  to  tlie  residuary  legatees  is  actually 
much  larger  (by  reason  of  the  omission  of  real  estate) 
than  the  sums  which  he  has  adopted.    All  the  other 
legatees  suffer  by  this  error.    It  is  immaterial  that  in 
this  estate  the  transfers  to  the  legatees  happen  to 
be  exempt.    If  they  had  not  been  exempt  the  general 
scheme  of  proportional  division  of  the  property  sub- 
ject to  taxation  in  New  York  would  be  even  more 
apparent.    Although  this  method  of  computation  has 
been  used  for  some  time,  no  objection  to  it  seems  to 
have  been  taken  previously. 

The  appraiser  erred,  therefore,  in  not  including  the 
real  estate  in  his  computations.  The  matter  is  remit- 
ted to  him  for  the  purpose  of  taking  proof  as  to  the 
total  value  of  all  the  general  legacies  and  the  residu- 
ary legacies  transferred  under  the  will.    Incidental  to 


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Matter  of  Lichtenbebg.  89 

Misc.]     Surrogate's  Court,  New  York  Coanty,  January,  1921. 

this  question  upon  the  rehearing  the  appraised  value 
of  the  entire  estate  should  be  submitted  under  oath  and 
not  in  the  form  of  a  letter  supplied  by  the  attorney 
setting  forth  his  estimate  thereof. 

Appeal  sustained. 


Matter   of   the   Estate   of   Bekjamik   Lightbnbbbo, 

Deceased. 

(Surrogate's  Court,  New  York  County,  January,  1921.) 

Acconntinc  — teatamentaiy  tnurtees  — wills— real  estate. 

Upon  the  accounting  of  testamentary  trnstees,  about  thir- 
teen years  after  the  death  of  their  testator,  as  to  unproductive 
and  unimproved  real  estate  situated  in  a  sister  state,  which 
though  they  were  in  duty  bound  to  sell  they  still  held  undivided, 
the  annual  taxes  and  carrying  charges  are  properly  charge- 
able to  and  should  be  paid  with  interest  out  of  the  principal. 

Upon  a  future  accounting  after  a  sale  of  the  real  estate 
within  six  months  from  the  date  specified  in  an  order  direct- 
ing the  trustees  to  sell,  they  may  be  reimbursed  from  the 
proceeds  of  the  sale. 

Proceeding   upon   the   judicial   settlement  of   the 
account  of  trustees. 

Masten  &  Nichols,  for  petitioner. 

Edwin  C.  Mulligan,  for  C.  Ersa  Mongini,  objector. 

Eliphalet  W.  Tyler,  for  Benjamin  Lichtenberg. 

Bobert  J.  Farrington,  for  J.  Chester,  A.  A.  Lich- 
tenberg, and  Hortense  C.  Lichtenberg. 

Foley,  S.    On  a  former  accounting  it  was  held  by 
Surrogate  Fowler  (Matter  of  Lichtenberg,  171  N.  Y. 


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90  Matter  of  Licutenbero. 

Surrogate's  Court,  New  York  County,  January,  1921.     [Vol.  114. 

Supp.  570)  that  the  deficit  in  the  operation  of  the  New 
York  really  was  properly  chargeable  to  principal,  as 
that  property  was  included  in  an  entirely  different 
trust  from  the  trust  consisting  of  personalty  set  up 
for  the  widow.  The  surrogate  further  held  it  was  im- 
proper to  invade  the  income  of  one  trust  to  pay  the 
carrying  charges  of  property  held  in  another  trust. 
This  decree  was  not  appealed  from.  The  accounts 
now  before  the  surrogate  include  the  unproductive  and 
unimproved  real  estate  in  Seattle.  On  this  accounting 
objection  is  made  by  the  widow  that  the  trustee  has 
deducted  the  annual  taxes  from  income  due  her,  and 
she  asks  that  all  the  carrying  charges  be  charged  to 
principal.  The  real  estate  involved  here  is  still  held 
undivided  by  the  trustee.  The  devisees  of  the  one- 
half,  which  vested  on  the  death  of  Moses,  refused  to 
accept  undivided  interests,  and  the  trustee  has  since 
been  unable  to  sell  the  property  to  advantage. 

The  will  of  the  testator  sets  forth  that  all  provisions 
for  the  widow  were  made  in  lieu  of  dower  and  in  com- 
pliance with  an  ante-nuptial  agreement.  An  income 
sufficient  for  her  support  was  therefore  contemplated 
by  the  testator.  While,  the  trust  fund  of  personalty 
amounts  to  $66,716.41,  the  widow  has  received  no 
income  since  July,  1919.  The  retention  of  this  real 
estate,  over  which  the  trustee  has  a  power  of  sale, 
imperils  the  life  interest  of  the  widow,  and  the  pay- 
ment of  taxes  is  at  present  depriving  her  of  any 
income.  A  continuation  of  this  policy  will  benefit  the 
remaindermen  alone.  Although  the  property  in 
question  was  owned  by  the  testator,  his  will  provides, 
**  No  part  of  my  estate  shall  be  invested  in  unim- 
proved property.''  Evidently  the  testator  did  not 
intend  to  have  this  unproductive  real  estate  remain 
permanently  in  the  trust  fund.  His  will  further  gave 
his  trustees  '*  full  power  and  authority  to  sell,  mort- 


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Matter  of  Licutekbebq.  91 


Misc.]     Surrogate's  Court,  New  York  County,  January,  1921. 

gage,  lease  or  otherwise  dispose  of  any  and  all  real 
estate  of  which  I  may  die  seized,  and  they  may  deem 
fit :  also  to  change  any  and  all  investments  without  any 
personal  liability  on  the  part  of  them  or  either  of 
them.''  That  the  trustees  have  a  power  of  sale  can- 
not be  seriously  disputed,  even  though  the  trust  as  to 
one-half  has  terminated.  Furniss  v.  Cruikshank,  191 
App.  Div.  450,  cited  by  counsel  for  remaindermen,  is 
not  in  point.  In  that  case  the  trustees  had  divided 
the  property  and  set  up  separate  trusts,  and  the 
income  from  the  productive  property  was  sufficient  to 
support  the  widow.  The  plain  intention  of  testator  in 
the  will,  therefore,  justifies  a  departure  from  the  gen- 
eral rule  requiring  payment  of  taxes  and  carrying 
charges  out  of  income.  Spencer  v.  Spencer,  219  N.  Y. 
459 ;  Lawrence  v.  Littlefield,  215  id.  561.  In  view  of  the 
decision  of  Surrogate  Fowler,  acquiesced  in  by  all  the 
parties,  and  for  the  other  reasons  just  stated,  I  am  of 
the  opinion  that  the  raxes  and  charges  are  properly 
chargeable  to  and  should  be  paid,  with  interest,  out  of 
principal.  Spencer  v.  Spencer,  183  N.  Y.  Supp.  870, 
873.  Reimbursement  may  be  provided  for  in  a  future 
accounting  from  the  proceeds  of  the  sale  of  the  realty 
when  a  sale  is  had.  Almost  thirteen  years  have 
elapsed  since  the  death  of  the  testator  without  a  com- 
plete disposition  of  this  property.  The  trustees  were 
bound  to  sell  this  realty,  and  this  should  be  done  at 
the  earliest  opportunity.  The  decree  to  be  submitted 
should  contain  a  direction  to  sell  the  real  estate  within 
six  months  from  October  29,  1920,  as  stipulated  by  all 
the  parties  in  open  court. 

Decreed  accordingly. 


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92  Jackson  v.  Grey. 


Appellate  Tenxi;  First  Department,  January,  1921.    [Vol.  114. 


T.  J.  Fletcher  Jackson  and  Gertrude  H.  M.  Jackson, 
Landlords,  Respondents,  v.  Edna  Grey,  Tenant, 
Appellant,  and  Alta  Brennan  et  al.,  Under-tenants. 

(Suprone  Court,   Appellate  Term,  First  Department,  November, 
1920,  Term  — filed  January,  1921.) 

Smninary  proceedings — when  will  not  lie  against  tenant  on  the 
gronnd  of  expiration  of  term  —  landlord  and  tenant  —  lease  — 
Code  Civ.  Pro.  §  2231  (1-a)  aided  by  Laws  of  1920.  chap.  942. 

Under  section  2231  of  the  Code  of  Civil  Procedure,  as 
amended  by  chapter  942  of  the  Laws  of  1920,  by  adding  sub- 
division 1-a  to  the  effect  that  no  summary  proceeding  *'  shall 
be  maintainable  to  recover  the  possession  of  real  property 
•  *  •  occupied  for  dwelling  purposes,"  summary  proceed- 
ings on  the  ground  of  the  expiration  of  the  term  will  net  lie 
against  the  tenant  of  several  floors  of  a  private  house  which 
have  been  sublet  and  are  used  exclusively  for  dwelling  pur- 
poses, and  a  final  order  in  favor  of  the  landlord  will  be 
reversed  and  final  order  directed  in  favor  of  the  tenant. 

Appeal  by  tenant  from  a  final  order  of  the  Munici- 
pal Court  of  the  city  of  New  York,  borough  of  Man- 
hattan, fifth  district,  in  favor  of  the  landlords. 

David  G.  Godwin,  for  appellant. 

Randolph  M.  Newman  (Leonard  Klein,  of  counsel), 
for  respondents. 

BijuR,  J.  This  proceeding  was  brought  to  dispos- 
sess the  tenant  on  the  ground  of  expiration  of  her 
term.  The  determinative  consideration  in  the  case  is 
the  application  of  chapter  942  of  the  Laws  of  1920  (one 
of  the  housing  acts),  which  amended  section  2231  of 
the  Code  of  Civil  Procedure  by  adding  subdivision  la, 
to  the  effect  that  no  summary  proceeding  '*  shall  be 


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Jackson  v.  Grey.  93 

Misc.]     AppeUate  Term,  First  Department,  January,  1921. 

maintainable  to  recover  the  possession  of  real 
property  *  •  *  occupied  for  dwelling  purposes,'* 
except  in  instances  not  relevant  to  the  present  case. 
It  appears  that  the  premises  here  involved  are  the 
second  and  third  floors  of  a  private  house  at  No.  132 
West  Eighty-seventh  street,  which  the  tenant  has  sub- 
let to  a  number  of  subtenants,  and  that  the  same  are 
used  exclusively  for  dwelling  purposes.  It  seems  to 
me  to  be  perfectly  clear  that  these  premises  fall  within 
the  description  of  the  statute  quoted,  and  that,  there- 
fore, summary  proceedings  will  not  lie.  The  respond- 
ent urges  that  as  between  the  landlords  and  this 
particular  tenant  the  tenant  '*  made  a  business  "  of 
subletting  furnished  apartments.  The  statute  does 
not,  however,  recognize  the  nice  distinction  thus 
sought  to  be  superimposed  upon  it.  In  my  opinion 
it  was  the  intention  of  the  legislature  to  forbid  the 
bringing  of  summary  proceedings  in  respect  of  prem- 
ises occupied  for  dwelling  purposes,  and  no  distinction 
was  made  between  lessees  and  any  number  of  sub- 
lessees. The  manifest  purpose  of  the  statute  would 
be  frustrated  if  the  tenancy  here  in  issue  could  be 
disturbed  with  the  consequent  disturbance  of  the 
occupation  by  the  undertenants,  while  no  useful  pur- 
pose w^ould  be  subserved  by  such  a  proceeding,  except, 
possibly,  to  enable  the  landlords  to  succeed  without 
compensation  to  **  the  business  *'  of  the  tenant  in 
subletting  the  apartments. 

Judgment  reversed,  with  thirty  dollars  costs  and 
final  order  directed  in  favor  of  the  tenant. 

MuLLAN,  J.,  concurring  in  result. 

Judgment  reversed,  with  thirty  dollars  costs. 


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94  Btjlova  v.  Babnett,  Inc. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 


Adoij^h  Bulova,  Appellant,  v.  E.  L.  Babnett,  Inc., 
Respondent. 

(Supreme  Court,  Appellate  Term,   First  Department,  December, 
1920,  Term  — filed  January,  1921.) 

Pleading  —  when  demnrrer  snstained  —  services  —  corporations  ^ 
assignments  —  Stock  Oorporation  Law,  §  66. 

Unless  it  appears  in  an  action  to  recover  upon  an  assigned 
claim  for  services  rendered  and  material  furnished  by  plain- 
tiff's assignor,  a  corporation,  that  plaintiff  was  an  officer, 
director,  stockholder  or  a  creditor  of  the  corporation,  the 
assignment  is  not  null  and  void  under  section  66  of  the  Stock 
Corporation  Law  and  said  statute  is  not  a  defense  to  the 
alleged  cause  of  action. 

A  separate  defense,  pleading  that  the  assignment  set  forth 
in  the  complaint,  was  executed  by  one  H.  while  he  was  assum- 
ing to  act  as  the  vice-president  of  the  corporation,  and  was 
received  by  plaintiff  with  full  knowledge  and  notice  of  inten- 
tion to  give  him  a  preference  "  as  an  alleged  creditor "  over 
other  creditors  of  the  corporation,  and  for  that  reason  the 
assignment  is  null  and  void,  is  provable  under  the  general 
denial  in  the  answer,  and  an  order  overruling  a  demurrer  to 
the  separate  defense  will  be  reversed  and  the  demurrer  sus- 
tained with  leave  to  serve  an  amended  answer. 

Appeal  by  plaintiff  from  that  part  of  an  order  of 
the  City  Court  of  the  city  of  New  York  overruling 
plaintiff's  demuner  to  the  fourth  defense. 

Sanford  H.  Cohen  (George  Cohen,  of  counsel),  for 
appellant. 

Frederick  W.  Sparks,  for  respondent. 

Guy,  J.  The  action  is  to  recover  for  services  ren- 
dered and  materials  furnished  to  defendant  by  the 
plaintiff's  assignor  S.  S.  Corporation.     As  a  fourth 


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BuLovA  V.  Barnett,  Ixo.  95 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

defense  defendant  set  up  in  its  amended  answer  that 
the  alleged  assignment  mentioned  in  the  complaint 
was  executed  by  one  Henschel  purporting  to  act  es 
vice-president  of  the  assignor  corporation  to  the  plain- 
tiff, **  who  then  claimed  to  be  a  creditor ''  of  the  cor- 
poration; that  the  corporation  was  insolvent  and  had 
refused  to  pay  its  notes  and  other  obligations,  and 
that  the  alleged  assignment  set  forth  in  the  com- 
plaint was  executed  by  the  said  Henschel  while  he  was 
assuming  to  act  as  the  vice-president  of  the  S.  S. 
Corporation,  and  was  received  by  the  plaintiff  with 
full  knowledge  and  full  notice,  and  with  the  intent  of 
giving  him  a  preference  '*  as  an  alleged  creditor  ^* 
over  other  creditors  of  the  corporation;  and  that  by 
reason  thereof  the  alleged  assignment  was  and  is  null 
and  void. 

The  case  has  been  before  this  court  and  before  the 
Appellate  Division  on  motions  to  strike  out  portions 
of  the  original  answer  and  for  similar  relief.  Ill 
Misc.  Rep.  150;  193  App.  Div.  161.  On  these  prior 
appeals  the  defense  now  before  the  court  was  the  fifth 
defense  in  the  original  answer;  and  it  was  held  by 
both  this  court  and  the  Appellate  Division  that  as  the 
defense  was  a  plea  of  confession  and  avoidance  under 
section  66  of  the  Stock  Corporation  Law  the  denials 
which  were  made  a  part  of  the  defense  in  the  original 
answer  should  be  stricken  out.  The  court  below, 
however,  without  expressly  deciding  that  the  plea 
constitutes  a  defense,  has  held  that  the  defense  is 
provable  under  defendant's  general  denial  and  over- 
ruled the  demurrer. 

It  remains  to  be  considered  whether  an  assign- 
ment made  by  the  corporation  under  the  circum- 
stances *'  is  null  and  void."  The  acts  prohibited  by 
section  66  of  the  Stock  Corporation  Law,  in  so  far  as 
relevant  to  a  consideration  of  this  appeal,  are  cor- 


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96  BuLOVA  V.  Barxett,  Inc. 

Appellate  Term,  First  Department,  January,  1921.  [Vol.  114 

porate  transfers  to  officers,  directors  or  stockholders 
for  the  payment  of  any  debt  or  upon  any  other  con- 
sideration than  the  full  value  of  the  property  paid  in 
cash,  and  transfers  by  insolvent  corporations  with  the 
intent  of  giving  a  preference  to  a  creditor  over  other 
creditors  of  the  corporation;  and  unless  it  appears 
that  the  plaintiff  was  an  officer,  director  or  stock- 
holder or  a  creditor  of  the  corporation  the  case  would 
not  come  within  the  statute,  and  the  statute  would  not 
be  a  defense  to  the  alleged  cause  of  action.  While  the 
theory  of  the  pleader  is  that  the  plaintiff  was  a  credi- 
tor of  the  corporation  it  is  not  alleged  in  the  defense 
that  the  plaintiff  was  a  creditor,  the  only  refereilVe 
to  the  plaintiff  in  that  regard  being  that  he  **  claimed 
to  be  a  creditor  "  and  that  the  assignment  was  made 
to  him  with  the  intent  of  giving  him  a  preference  **a8 
an  alleged  creditor."  The  complaint  alleges  the  mak- 
ing of  the  assignment  to  plaintiff  for  a  valuable  con- 
sideration. Assuming,  however,  that  the  defense  sets 
up  a  transfer  within  the  statute,  while  the  precise 
point  does  not  seem  to  have  been  squarely  decided, 
the  trend  of  judicial  construction  of  the  act  indicates 
that  as  to  a  corporate  debtor,  such  as  the  defendant 
in  this  action,  such  a  prohibited  transfer  would  not  be 
void  in  the  sense  that  the  assignee  could  not  main- 
tain suit  for  the  recovery  of  the  assigned  claim.  A 
contrary  construction  would  impose  a  perilous  burden 
upon  corporate  debtors  ignorant  of  the  details  of  the 
internal  management  of  a  corporation  assignor  and 
subject  them  to  the  hardship  of  a  double  payment. 
To  hold  the  preferential  assignee  accountable  to  the 
creditors  (as  the  statute  expressly  does  in  this  case) 
and  to  permit  a  debtor  to  pay  an  indebtedness  upon  an 
assignment  valid  on  its  face  seems  more  in  accord  with 
the  spirit  of  the  statute. 
Our  attention  has  been  called  to  a  decision  of  the 


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BuLovA  V.  Barnett,  Inc.  97 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

Appellate  Division  rendered  in  this  case  since  the 
argument,  which  determines  that  the  S.  S.  Corpora- 
tion, the  plaintiff's  assignor,  must  be  permitted  to 
intervene  in  this  action  in  order  to  litigate  its  claim 
that  the  assignment  to  the  plaintiff  was  made  in  fraud 
of  its  own  creditors  and  is  therefore  void  as  against 
it.  Nothing  contained  in  that  opinion  seems  to  us  to 
support  the  defendant's  contention  herein.  On  the 
contrary,  if  this  defendant  is  in  a  position  to  raise  the 
same  defense  which  the  S.  S.  Corporation  seeks  to 
raise,  there  would  be  no  reason  to  permit  the  S.  S. 
Corporation  to  intervene  for  the  Appellate  Division 
expressly  states  in  its  opinion  that  as  a  matter  of  fact 
the  S.  S.  Corporation  has  already  succeeded  by  reason 
of  circumstances  not  disclosed  in  our  present  record, 
to  all  the  interest  of  the  defendant  in  this  action  and 
would  therefore  be  in  a  position  to  take  over  the. 
defense  of  this  action  and  to  derive  the  benefits  of 
any  judgment  in  the  defendant's  favor. 

Order  in  so  far  as  appealed  from  reversed,  with 
ten  dollars  costs  and  disbursements,  and  demurrer  to 
the  fourth  defense  sustained,  with  ten  dollars  costs, 
with  leave  to  defendant  to  serve  an  amended  answer 
within  six  days  after  service  of  a  copy  of  the  order 
entered  hereon 

Order  reversed,  with  ten  dollars  costs  and  disburse- 
ments. 


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98      163  East  36th  Street  Cobp.  v.  Stockbbidoe. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 


163  East  36th  Street  Corporation,  Bespondent,  v. 
Frank  Parker  Stockbridge,  Appellant. 

(Supreme  Court,  Appellate  Term,  First  Department,  December, 
1920,  Term  — filed  January,  1921.) 

Oonnterdaim  —  landlord  and  tenant  —  failure  to  give  posseasion  — 
damagea—  evidence. 

Where  in  an  aetion  to  recover  rent  of  an  apartment  under 
a  written  lease  the  evidence  justifies  a  finding  that  because 
of  the  acts  of  the  landlord,  its  contractors  and  servants,  the 
tenant  was  not  given  possession  of  the  apartment  on  time, 
he  is  entitled  to  counterclaim  his  damages  for  the  time  he 
was  kept  out  of  possession. 

Where  the  court  refused  to  submit  the  counterclaim  to  the 
jury  and  directed  a  verdict  in  favor  of  the  landlord  for  the 
amount  of  rent  claimed,  the  judgment  entered  on  the  verdict 
will  be  reversed  and  a  new  trial  ordered. 

Appeal  by  defendant  from  judgment  of  the  City 
Court  of  the  city  of  New  York  on  verdict  directed 
for  plaintiff  and  from  order  denying  motion  for  new 
trial. 

Edwards,  Murphy  &  Minton  (Joseph  F.  Curren  and 
John  McKim  Minton,  Jr.,  of  counsel),  for  appellant. 

G.  Arnold  Moses,  for  respondent. 

Gut,  J.  In  this  action  by  landlord  for  rent  of  an 
apartment  the  tenant  sought  under  his  counterclaim 
to  prove  his  damages  for  the  landlord's  failure  to  give 
him  possession  of  the  apartment  for  the  period  begin- 
ning October  1,  1919,  the  first  day  of  the  term,  and 
December  twelfth,  following.  The  lease,  which  is 
dated  August  18,  1919,  is  of  '^the  apartment  known 
as  the  first  floor  of  the  building  163  East  3Gth  Street, 


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163  East  36th  Street  Corp.  v.  Stogkbkidqe.    99 
Misc.]     Appellate  Temiy  First  Department,  January,  1921. 

New  York  City,"  for  the  term  of  three  years,  to  be 
used  and  occupied  by  the  tenant  upon  the  condition 
mentioned  in  the  lease. 

The  tenant  testified  that  on  October  first  he  asked 
plaintiffs'  treasurer  McGrath  when  the  tenant  was 
going  to  be  able  to  get  into  the  premises  and  McGrath 
replied  '*  within  a  week  or  ten  days;"  that  on  October 
first,  there  were  no  windows  and  no  doors  in  the  apart- 
ment; floors  not  laid;  tile  floors  in  the  bathroom  and 
kitchen  not  laid;  hearths  not  laid;  much  of  the  plumb- 
ing not  installed,  and  the  plastering  only  partly  done ; 
that  the  tenant  observed  in  the  apartment  various 
accumulations  of  lumber,  door  frames,  window  frames, 
doors,  windows,  mantles,  flooring,  tools  and  equipment 
for  work  of  all  kinds  not  pertaining  to  the  apartment; 
that  on  September  twenty-sixth  he  had  put  in  some 
of  his  furniture,  and  that  either  on  October  first  or 
subsequent  thereto  there  was  furniture  belonging  to 
other  tenants  of  the  building  in  the  apartment;  that 
the  use  of  the  apartment  for  the  storage  of  building 
materials  and  other  people's  furniture  was  a  continual 
process  for  many  weeks.  The  tenant  further  testified 
that  he  was  at  the  premises  almost  every  day  for  some 
weeks  after  the  first  of  October ;  that  he  saw  McGrath 
there  frequently  during  October  and  November;  that 
on  each  occasion  he  asked  McGrath  when  he  was  going 
to  let  the  tenant  into  the  apartment  and  that  plain- 
tiffs' treasurer  replied  either  '*  in  a  few  days  "  or 
**  think  one  week  or  two  weeks;"  that  once  or  twice 
McGrath  said  **  you  can  positively  get  in  here  within 
a  week  or  ten  days;"  and  that  McGrath  would  enter 
into  explanation  as  to  why  he  was  unable  to  deliver 
the  apartment,  stating  that  it  was  because  of  delays 
encountered  in  the  construction  work;  that  the 
plastering  was  not  completed  until  well  toward  the 
end  of  November,  and  the  painting  not  done  until 


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100    163  East  36th  Street  Corp.  v.  Stogkbridge. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

December  twelfth,  and  the  carpenter  work  not  finished 
until  two  days  afterwards ;  that  paints  were  mixed  in 
one  of  the  rooms;  that  he  obtained  the  keys  of  the 
apartment  December  eleventh ;  that  he  frequently  saw 
McGrath  in  the  apartment  after  October  first,  also 
workmen  doing  plastering  work  and  plumbing  and 
other  work. 

The  court  refused  to  submit  the  counterclaim  to  the 
jury  and  directed  a  verdict  for  the  landlord  for  $1,050, 
the  amount  of  the  rent  claimed. 

The  tenant  made  out  a  prima  facie  case  on  his 
counterclaim.  An  apartment  in  a  tenement  house  Js 
let  and  hired  for  human  habitation,  and  in  the  light 
of  the  law  applicable  to  the  construction  and  occupa- 
tion of  such  houses  and  the  proof  given  by  the  defend- 
ant is  was  undoubtedly  the  intention  of  the  parties  to 
the  lease  that  the  premises  demised  were  a  completed 
apartment,  and  not  merely  a  space  on  the  first  floor 
without  windows,  doors  or  floors,  bounded  by  unplas- 
tered  walls  and  lacking  the  necessary  plumbing. 
.  Further,  the  jury  would  have  been  authorized  in  find- 
ing that  the  tenant  was  prevented  from  taking  posses- 
sion because  of  the  acts  of  the  landlord,  its  contractors 
and  servants.  In  either  aspect  the  tenant  waiving 
rescission  would  be  entitled  to  his  damages.  Meyers 
V.  Liebeskind,  46  Misc.  Rep.  272;  Kopelman  v.  Orit- 
man,  76  id.  188;  Frank  v.  Morewood  Realty  Holding 
Co.,  89  id.  425. 

Lehman  and  Wagner,  JJ.,  concur. 

Judgment  and  order  reversed  and  new  trial  ordered, 
with  00^  to  appellant  to  abide  event. 


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PoTTBB  V.  American  Union  Line,  Inc.       101 
Misc.]     Appellate  Term,  First  Department,  January,  1921. 


Leta  D.  Pottbb,  Appellant,  v.  American  Union  Line, 
Inc.,  Eespondent. 

(Supreme  Court,  Appellate  Term,  First  Department,  December, 
1920,  Term  — filed  January,  1921.) 

Ships  and  shipping  —  contracts  for  towage  —  principal  and  agent. 

The  captain  of  a  schooner  has  implied  power  to  bind  his 
own  principal  by  a  contract  for  the  towage  of  the  ship. 

Where  the  captain  of  a  schooner  made  a  contract  with  plain- 
tiff to  tow  the  ship,  the  person  for  whoee  benefit  the  ship  is 
operated  on  the  particular  voyage  in  which  the  expense  for 
towage  was  incurred,  not  the  actual  owner  of  the  ship,  is 
the  principal  of  the  captain  and  is  liable  upon  the  contract 
for  towage 

Where  payment  for  the  services  rendered  was  refused  on 
the  ground  that  defendant  was  not  the  owner  of  the  schooner 
and  that  the  captain  was  not  defendant's  agent  but  the  agent 
of  the  actual  owner,  a  judgment  dismissing  the  complaint  will 
be  reversed  and  judgment  directed  in  favor  of  plaintiff. 

Appeal,  by  the  plaintiff  from  a  judgment  of  the 
Municipal  Court  of  the  city  of  New  York,  borough  of 
Manhattan,  first  district,  dismissing  the  plaintiff  *b 
complaint  with  costs  to  the  defendant. 

Foley  &  Martin  (William  H.  Darrow,  William  J. 
Martin,  of  counsel),  for  appellant. 

Engel  Brothers  (Isidore  Schneider,  of  counsel),  for 
respondent. 

Lehman,  J.  The  plaintiff  was  employed  by  the 
captain  of  the  schooner  James  W.  Elwell  to  tow  the 
schooner  from  some  place  in  the  harbor  of  New  York 
to  the  Fairway  buoy  outside  of  Sandy  Hook,  for  the 
sum  of  $150.     The  captain  indorsed  upon  the  plain- 


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102      Potter  v.  American  Union  Line,  Inc. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

tiflf's  bill  for  this  service  the  words  '*Ain.  Union  Line, 
11  Broadway,  to  sea  from  Red  Hook,  as  agreed,  $150. 
A.  C.  Clark,  Master."  There  is  no  claim  that  the 
plaintiff  did  not  render  the  services  for  which  he  was 
to  be  paid  the  sum  of  $150,  and  there  is  no  claim  that 
the  captain  did  not  have  implied  and  apparent  author- 
ity to  contract  with  the  plaintiff  for  these  services,  but 
the  defendant  refuses  to  pay  the  plaintiff's  claim  on 
the  ground  that  it  was  not  the  owner  of  the  schooner, 
and  the  captain  of  the  schooner  was  not  its  agent, 
but  the  agent  of  the  actual  owner,  the  Northland  Navi- 
gation Company,  and  that  consequently  no  contract 
made  by  the  captain,  even  though  such  contract  pur- 
ported to  be  made  by  him  as  agent  for  the  defendant, 
is  binding  upon  it.  There  can  be  no  doubt  that  the 
captain  of  a  schooner  has  the  implied  power  to  make 
contracts  necessary  and  proper  in  the  navigation  of 
the  ship  which  will  be  binding  upon  the  ship's  owner. 
The  term  **  owner  "  when  used  in  this  connection  does 
not  mean  necessarily  the  person  in  whom  the  legal 
title  to  the  ship  is  vested,  but  rather  the  person  for 
whose  benefit  the  ship  is  operated  on  the  particular 
voyage  in  which  the  expense  is  incurred,  and  who  dur- 
ing that  time  has  the  direction  and  control  of  the  ship, 
its  oflScers  and  crew.  The  legal  presumption  is  in 
favor  of  the  continuance  of  ownership  and  control  by 
the  general  owners  of  the  ship,  but  where  the  evidence 
shows  that  there  has  been  a  parting  with  the  posses- 
sion of  the  ship  so  that  during  the  voyage  the  absolute 
owner  has  surrendered  his  control  over  her,  the 
oflBcers  of  the  ship  become  the  agents  of  the  special 
owner  for  the  voyage,  and  have  implied  power  to  bind 
him  and  not  the  general  owner.  Hagar  v.  Clark,  78 
N.  Y.  45.  The  question,  therefore,  which  is  to  be  deter- 
mined in  this  case  involves  simply  the  ordinary  rules 
of  agency.    The  captain  of  the  ship  had  implied  power 


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PoTTBB  V.  American  Union  Line,  Inc.       103 


Misc.]     Appellate  Term,  First  Department,  January,  19-1. 

to  bind  Ms  own  principal,  and  the  court  was  simply 
called  upon  to  determine  whether  the  defendant  or 
the  Northland  Navigation  Company  was  the  captain's 
principal. 

The  burden  of  proof  naturally  rested  upon  the 
plaintiff,  and  in  order  to  meet  this  burden  he  showed 
by  undisputed  and  documentary  evidence  that  this 
defendant  had  contracted  in  its  own  name  with  the 
French  high  commission  for  the  transportation  of 
freight  during  the  war;  that  all  arrangements  in 
regard  to  this  freight  were  made  by  defendant's 
servants;  that  it  received  in  its  own  name  payment 
of  all  freight  charges,  and  that  it  paid  all  expenses 
including  the  wages  of  the  captain.  The  plaintiff 
further  showed  that  the  defendant  corresponded  in 
its  own  name  with  the  United  States  shipping  board 
and  made  application  to  them  to  place  the  schooner 
Elwell  on  berth  for  Grecian  ports  with  general  cargo, 
and  guaranteed  that  after  the  vessel's  outward  voy- 
age, it  would  return  by  such  route  as  directed  by  the 
chartering  committee  of  the  United  States  shipping 
board.  It  is  true  that  the  letters  to  the  United  States 
shipping  board  show  that  the  defendant  did  not  claim 
to  be  acting  as  the  general  owner  of  the  ship,  but  they 
did  show  that  the  defendant  claimed  the  right  to  con- 
trol the  course  of  the  ship.  The  trial  justice  held,  and 
in  my  opinion  held  correctly,  that  this  testimony  was 
sufficient  to  show  prima  facie  that  the  defendant  was 
in  control  of  the  schooner,  and,  therefore,  in  a  legal 
sense  the  principal  of  the  captain  during  this  voyage. 
Thereupon  the  defendant  produced  its  secretary  and 
treasurer  to  rebut  the  plaintiff's  testimony  and  the 
inference  that  might  be  drawn  therefrom.  He  testified 
that  the  Northland  Navigation  Company  was  the 
owner  of  the  schooner,  that  the  defendant  acted  only 
as  agents  for  the  owners  and  signed  the  bills  of  lading 


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104      PoTTBB  V.  American  Union  Line,  Inc. 

■■  —    ■      ■  ^ 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

for  freight  on  this  ship,  with  the  word  **  agents  '- 
after  their  name,  that  the  captain  was  in  charge  of  the 
vessel  for  the  owners,  the  Northland  Navigation  Com- 
pany, though  the  defendant  paid  his  salary,  and  in 
fact  received  all  the  moneys  and  paid  all  the  expenses. 
He  also  testified  that  after  the  defendant  received  all 
the  moneys  and  paid  out  all  the  expenses,  the  defend- 
ant **  rendered  a  statement  to  the  Northland  Naviga- 
tion Company  showing  the  expenditures  and  the 
income.'*  It  is  to  be  noted  that  his  testimony  that  the 
Northland  Navigation  Company,  and  not  the  defend- 
ant, was  the  owner  of  the  ship,  that  the  defendant 
acted  only  as  agent  for  the  Northland  Navigation 
Company,  and  that  the  captain  of  the  ship  was  in 
charge  thereof  for  the  Northland  Navigation  Com- 
pany, involved  merely  conclusions  of  law  and  not  evi- 
dence. The  only  facts  to  which  this  witness  testified 
and  which  would  constitute  evidence  to  be  considered 
by  the  trial  judge  in  determining  the  question  before 
him  was  that  the  defendant  signed  the  bills  of  lading 
with  the  description  of  agents  after  their  name,  and 
that  the  defendant  rendered  a  statement  to  the  North- 
land Navigation  Company  showing  the  expenditures 
and  the  income.  If  in  fact  the  defendant  had  complete 
control  and  right  to  possession  of  the  schooner,  the 
fact  that  they  chose  to  describe  themselves  as  agents 
on  the  bill  of  lading  would  have  no  magic  effect  in 
exempting  them  from  liability  on  contracts  made  by 
their  duly  authorized  agents.  On  the  other  hand,  if 
the  defendant  was  merely  acting  for  the  benefit  of  the 
Northland  Navigation  Company  and  required  to 
account  to  its  principal  for  its  receipts  and  expendi- 
tures and  to  pay  over  all  the  profits  to  its  principal, 
then  it  is  not  liable  upon  the  contracts  made  by  agents 
whom  it  employed,  not  as  its  own  servants,  but  as 
servants  of  its  principal.    Apparently  the  trial  justice 


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Potter  v.  American  Union  Line,  Inc.       105 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

has  held  that  the  defendant's  testimony  that  it  ren- 
dered a  statement  to  the  Northland  Navigation  Com- 
pany of  expenditures  and  income  was  suflScient  to 
show  that  the  defendant  was  only  the  agent  of  the 
general  owner  and  to  rebut  any  inference  which  might 
otherwise  have  been  drawn  from  the  plaintiff's  testi- 
mony. Possibly  if  the  defendant's  testimony  that  it 
rendered  a  statement  of  the  income  and  expenditures 
to  the  Northland  Navigation  Company  was  not 
explained  or  shaken  upon  cross-examination  it  might 
lead  to  the  reasonable  inference  that  the  defendant 
was  bound  to  render  such  an  account  and  to  pay  over 
the  surplus  in  whole  to  the  Northland  Navigation 
Company,  or  in  other  words,  that  the  Northland  Navi- 
gation Company  was  at  all  times  the  owner  of  the 
j?hip  and  the  receipts  received  therefrom  and  the 
defendant  merely  its  agent;  though  it  would  seem  that 
if  that  were  the  fact,  the  defendant,  which  must  be  in 
possession  of  all  the  evidence  necessary  to  show  the 
true  relations  between  the  parties,  could  have  pro- 
duced testimony  to  show  exactly  what  the  defendant 
was  required  to  do  and  actually  did  in  connection  with 
the  management  and  control  of  this  ship.  We  need 
not,  however,  now  decide  this  question,  because  on 
cross-examination  this  same  witness,  the  defendant's 
secretary  and  treasurer  —  and  it  may  be  said  inci- 
dentally that  he  is  also  an  officer  of  the  Northland 
Navigation  Company,  which  maintains  its  oflSces  in 
the  same  building  as  the  defendant  —  testified :  **The 
Northland  Navigation  Company  had  no  bank  account. 
They  were  only  the  holding  company."  It  seems  to 
me  that  this  final  testimony  of  the  defendant  com- 
pletely establishes  the  plaintiff's  cause  of  action.  The 
Northland  Navigation  Company  was  only  the  holding 
company.  The  defendant  contracted  for  the  freight  in 
its  own  name,  received  payment  for  that  freight  in 


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106  May  v.  Dermont. 


Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

its  own  name,  paid  all  the  expenses  of  the  ship,  and 
held  itself  out  to  the  United  States  government  as 
authorized  to  guarantee  the  route  of  the  ship  on  the 
return  voyage,  and  I  cannot  s-ee  how  it  can  be  claimed 
that  the  evidence  is  suflScient  to  show  that  in  all  these 
transactions  it  was  merely  acting  as  the  agent  of  a 
company  which  it  admits  was  only  a  holding  compam^ 
and  had  not  even  a  bank  account.  The  very  failure  of 
the  defendant  to  produce  evidence  to  show  the  actual 
relations  it  bore  to  this  holding  company  justifies  the 
inference  that  such  evidence,  if  produced,  would  not 
have  been  favorable  to  it.  Under  the  circumstances 
I  feel  that  the  judgment  is  contrary  to  the  evidence 
and  the  law,  and  should  be  reversed,  with  $30  costs 
to  appellant,  and  judgment  directed  in  favor  of  the 
plaintiff  in  the  sum  of  $150,  with  interest  and  costs. 

Guy  and  Wagner,  JJ.,  concur. 

Judgment  reversed,  with  thirty  dollars  costs   to 
appellant. 


William  B.  May  and  Another,  etc..  Appellants,  v. 
Gertrude  Dermont,  Respondent. 

(Supreme   Court,   Appellate  Term,   First  Department,  December, 
1920,  Term  — filed  January,  1921.) 

Statutes  —  constmction  of  —  meaning  of  words  "  occnpied  for 
dwelling  purposes" — summary  proceedings  —  landlord  and 
tenant  — Laws  of  1920,  chap.  942. 

Although  the  legislative  intent  in  the  use  of  the  words  "  oc- 
eupied  for  dwelling  purposes"  in  the  statute  (Laws  of  1920, 
chap.  942)  by  which  a  landlord's  remedy  by  summary  proceed- 
ings is  suspended,  etc.,  means  an  occupation  by  the  tenant  for 
such  purposes,  and  the  statute  should  not  be  so  construed  as  to 
include  premises  which  are  occupied  by  the  tenant  for  the  pur- 


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May  v.  Debmont.  107 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

pose  of  providing  dwelling  or  shelter  to  others  for  the  tenant's 
profit,  the  legislature  did  not  intend,  however,  to  exclude  from 
the  operation  of  the  statute  premises  occupied  as  a  dwelling, 
not  only  by  the  tenant,  but  also  by  self-supporting  members 
of  the  family  or  paying  guests  not  related  and  perhaps  strangers 
to  the  tenant,  so  long  as  such  renting  of  the  premises  is  merely 
incidental  to  the  tenant's  occupation. 

Appeal  by  the  landlords  from  an  order  of  the 
Municipal  Court  of  the  city  of  New  York,  borough  of 
Manhattan,  third  district,  dismissing  the  petition  in 
a  summary  proceeding. 

Everett,  Clarke  &  Benedict  (A.  Leo  Everett,  of 
counsel),  for  appellants. 

Campbell  &  Boland  (Charles  J.  Campbell,  of 
counsel),  for  respondent. 

Lehman,  J.  The  landlord  has  brought  a  summary 
proceeding  to  recover  possession  of  a  house  leased  to 
the  defendant  after  the  expiration  of  the  defendant's 
term.  At  the  trial  the  petition  was  dismissed  on  the 
ground  that  the  landlord's  remedy  by  sumniarj-  pro- 
ceeding was  suspended  by  chapter  942  of  the  Laws  of 
1920.  That  statute  provides  that  in  view  of  the  exist- 
ing public  emergency  no  summary  proceeding  **  shall 
be  maintainable  to  recover  the  possession  of  real 
property  •  •  •  occupied  for  dwelling  purposes  '' 
except  in  certain  contingencies ;  and  the  only  question 
in  this  case  is  whether  the  house  leased  by  the  tenant 
is  **  occupied  for  dwelling  purposes  "  within  the 
meaning  of  the  statute. 

No  evidence  was  presented  at  the  trial,  but  the 
tenant  conceded,  and  the  landlord  has  accepted  the 
concession,  that  the  premises  which  the  landlord  seeks 
to  recover  are  **  a  house  in  the  City  of  New  York 
occupied  for  dwelling  purposes  and  for  the  purposes 
of  this  record,  there  are  sixteen  rooms  in  the  house 


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108  May  v.  Dermont, 


Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

and  that  she  (the  tenant)  does  not  occupy  more  than 
one  or  two  rooms  at  any  time."  It  was  further  con- 
ceded that  the  tenant  is  a  widow  and  that  **  she  has 
no  other  business  except  the  letting  of  rooms  in  this 
house  and  that  the  letting  of  rooms  in  this  house  is 
her  sole  or  principal  means  of  livelihood." 

It  is  quite  evident  that  the  words  '*  dwelling  pur- 
poses "  are  not  capable  of  a  fixed  definition  which 
will  be  always  applicable  regardless  of  the  context  in 
which  they  are  used,  and  an  examination  of  the  cases 
in  which  these  words  have  been  construed  shows  that 
the  courts  have  placed  one  construction  on  them  when 
used  in  a  statute  defining  burglary,  and  another  con- 
struction when  used  in  a  statute  intended  to  restri^jt 
the  granting  of  liquor  licenses  in  residential  districts ; 
and  they  have  placed  one  construction  on  them  when 
used  in  a  restrictive  covenant  in  a  deed  and  another 
construction  on  them  when  used  in  a  warranty  or 
condition  in  an  insurance  policy.  This  case  itself 
furnishes  a  most  striking  example  of  the  impossibility 
of  finding  a  definition  of  the  words  that  will  satisfy 
all  cases,  for  though  the  landlord  asks  us  to  reverse 
a  finding  that  the  house  is  **  occupied  for  dwelling 
purposes  '^  within  the  meaning  of  the  statute,  he  has 
accepted  a  concession  in  which  it  is  expressly  stated 
that  '*  the  house  is  occupied  for  dwelling  purposes." 

It  is  plain  that  if  we  give  the  words  a  broad  signif- 
ication or  even  the  ordinary  signification  in  which 
they  were  used  by  the  parties  at  the  trial,  then  we 
must  hold  that  the  trial  judge  correctly  held  that  the 
landlord's  petition  must  be  dismissed  under  the 
express  provisions  of  the  statute;  and  we  can  give 
these  words  a  narrower  signification  only  if  a  narrower 
construction  will  carry  out  the  legislative  intent.  The 
statute  under  consideration  is  a  remedial  and  not  a 
penal  statute,  but  it  was  enacted  to  meet  an  extraor- 


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May  v.  Dermont.  109 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

dinary  emergency  by  remedies  of  an  extraordinary 
nature,  and  in  construing  the  statute  we  are  justified 
in  assuming  that  the  legislature  never  intended  that 
its  provisions  should  apply  to  cases  where  they  could 
not  constitute  a  remedy  for  the  conditions  which  the 
legislature  sought  to  relieve.  The  legislature  has 
sought  to  protect  the  homes  of  inhabitants  of  great 
cities  and  to  prevent  landlords  from  compelling 
tenants  to  pay  unreasonable  rents  for  their  homes. 
The  legislature  has  not  sought  to  protect  the  tenants 
of  business  premises  from  demands  for  unreasonable 
rent,  and  the  landlord  argues  that  in  the  present  case 
the  tenant  is  under  the  conceded  facts  using  the 
premises  for  the  business  of  a  rooming  house,  and 
the  legislature  never  intended  that  her  business  should 
receive  extraordinary  protection. 

It  is  plain  that  the  legislature  did  not  intend  its 
extraordinary  remedies  to  apply  to  premises  hired 
by  the  tenant  for  purposes  of  profit,  even  though  that 
profit  be  made  by  the  tenant  in  operating  a  hotel,  a 
rooming  house  or  a  boarding  house.  The  extraor- 
dinary laws  do  not  prevent  the  lessee  of  such 
premises  from  securing  from  his  guests  all  the  com- 
pensation which  he  can  induce  or  compel  them  to  pay 
for  housing,  and  it  may  well  be  argued  that  when  the 
legislature  used  the  words  *'  occupied  for  dwelling 
purposes  **  it  intended  an  occupation  by  the  tenant 
for  such  purposes,  and  that  the  statute  should  not 
be  construed  as  including  premises  which  are  occupied 
by  the  tenant  for  the  purpose  of  providing  dwelling 
or  shelter  to  others  for  the  tenant's  profit. 

For  the  purposes  of  this  appeal,  I  have  assumed 
that  this  is  the  correct  construction  of  the  statute, 
but  even  if  so  construed,  it  seems  to  me  that  its  provi- 
sions are  broad  enough  to  protect  the  tenant  in  this 
case.     Obviously  the  legislature  did  not  intend  to 


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no  May  V,  Dermont. 


Surrogate's  Court,  New  York  County,  December,  1920.     [Vol.  114. 

exclude  from  the  operation  of  the  statute  premises 
occupied  as  a  dwelling  not  only  by  the  tenant,  but 
also  by  self-supporting  members  of  the  family  who 
pay  rent  or  board  to  the  head  of  the  household,  and 
it  can  hardly  be  contended  that  the  legislature  intended 
to  exclude  from  its  operation  similar  cases  where  the 
paying  guests  are  not  related  and  perhaps  strangers 
to  the  tenant  so  long  as  the  renting  of  the  rooms  to 
strangers  is  merely  incidental  to  the  occupation  of 
the  premises  by  the  tenant  as  his  dwelling.  The 
landlord's  counsel  urges,  however,  that  even  if  this 
construction  be  correct,  in  the  present  case  it  cannot 
reasonably  be  said  that  where  fourteen  or  fifteen  rooms 
in  a  house  of  sixteen  rooms  are  leased  for  profit, 
the  premises  are  still  occupied  by  the  tenant  as  her 
dwelling,  and  that  in  effect  the  house  is  occupied  for 
business  rather  than  dwelling  purposes.  While  I 
recognize  that  the  question  is  not  free  from  doubt,  I 
cannot  agree  with  the  landlord's  contention.  The 
tenant  lives  in  the  house  and  it  constitutes  her  dwell- 
ing. So  far  as  the  record  shows,  she  manages  the 
household  affairs,  and  the  other  persons  who  occupy 
most  of  the  rooms  in  the  house  are  in  a  sense  mem- 
bers of  the  household  and  even  of  the  family.  There 
is  no  essential  difference  in  the  relations  of  the  head 
of  a  household  which  includes  one  lodger  who  pays  for 
his  lodging  and  one  which  includes  a  number  of 
lodgers.  Even  the  term  **  family  "  is  sometimes  given 
a  meaning  sufficiently  broad  to  include  boarders  or 
lodgers  (see  Words  and  Phrases  Judicially  Defined), 
and  it  seems  to  me  that  the  legislative  intent  to  pro- 
tect tenants  of  premises  '*  occupied  for  dwelling  pur- 
poses "  cannot  be  given  its  proper  force  and  effect, 
unless  we  include  within  the  protection  of  the  statute 
all  tenants  who  occupy  the  premises  for  the  purposes 
of  dwelling  therein  with  their  households,  including 


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Staracb  &  Co.,  Inc.,  v.  Raporel  S.  S.  Line,  Inc.  Ill 

Mise.]     Appellate  Term,  First  Department^  January,  1921. 

lodgers  who  form  parts  of  the  household  even  though 
the  household  is  supported  in  whole  by  the  payments 
made  by  the  lodgers. 

Order  should  therefore  be  affirmed,  with  twenty-five 
dollars  costs. 

QuY  and  Wagneb,  JJ.,  concur. 

Order  affirmed,  with  twenty-five  dollars  costs. 


AcHiLLB  Starace  &  Co.,  Inc,  Respondent,  v.  Raporel 
S.  S.  Line,  Inc.,  and  Edward  M.  Raphel  &  Co.,  Inc., 
Appellants. 

(Supreme  Courts  Appellate  Term,  First  Department,  December, 
1920,  Term  — filed  January,  1921.) 

Ships  and  sliipping  —  contracts  —  terms  of  —  eridence  —  rates — 
trial. 

The  only  issue  litigated  in  an  action  for  the  non-delivery 
of  three  cases  of  goods  delivered  by  plaintiffs  to  defendant 
at  the  city  of  New  York  for  shipment  to  a  foreign  port,  was 
whether  defendant's  liability  was  limited  to  $100  for  each  case 
lost,  and  thoui^h  the  evidence  showed  that  defendant  had  two 
rates,  one  of  which  was  ad  vctloremy  the  trial  justice,  in  spite 
of  a  clause  in  the  bill  of  lading  issued  at  the  time  the  goods 
were  delivered  to  defendant,  which  provided  that  "  unless  a 
higher  value  be  stated  herein,  the  value  of  the  goods  does  not 
exceed  $100  per  package,  nor  $8  per  cubic  foot,  and  the 
freight  thereon  has  been  adjusted  upon  such  valuation,  and 
no  oral  declaration  or  agreement  shall  be  evidence  of  a  differ- 
ent valuation,"  gave  judgment  in  favor  of  plaintiff  in  the 
sum  of  $688,  the  actual  value  of  the  goods  which  had  been  lost. 
Held,  that  said  clause  was  of  itself  a  statement  that  the  rates 
were  based  upon  a  valuation  of  $100  and  constituted  a  notice 
that  if  the  shipper  desired  to  place  a  higher  valuation  on  the 
goods  shipped,  he  must  pay  a  higher  rate. 

The  contract  in  terms  showing  the  existence  of  an  ad  valorem 
rate,  the  plaintiff,  which  had  been  in  the  export  business  for 


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112  Stabacb  &  Co.,  Inc.,  v.  Raporel  S.  S.  Line,  Inc. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

several  years,  would  have  had  notice  of  essential  choice  of  rates 
had  it  read  the  contract  or  acquainted  itself  with  its  terms,  and 
the  judgment  in  its  favor  will  be  reduced  to  $288  and,  as  so 
modified,  affirmed. 

Appeal  by  the  defendants  from  a  judgment  of  the 
Municipal  Court  of  the  city  of  New  York,  borough  of 
Manhattan,  first  district,  rendered  in  favor  of  the 
plaintiff,  for  the  sum  of  $783. 

James  A.  Hatch,  for  appellants. 

David  Bernstein,  for  respondent. 

Lehman,  J.  The  plaintiff  delivered  to  the  defend- 
ants three  cases  of  goods  for  shipment  from  this  city 
to  Port-au-Prince,  in  the  republic  of  Haiti.  The  goods 
were  never  delivered  to  the  consignee,  and  the  defend- 
ants admit  liability  for  their  loss.  At  the  trial  it  was 
stipulated  that  the  only  issue  to  be  litigated  is 
*'  whether  or  not  defendants'  liability  in  this  action 
is  to  be  limited  to  the  sum  of  $100  for  each  package 
or  case  lost.'' 

When  the  goods  were  delivered  to  the  defendants 
they  issued  a  bill  of  lading,  and  amongst  the  condi- 
tions printed  upon  the  bill  of  lading  is  the  following : 
**  21.  Unless  a  higher  value  be  stated  herein,  the 
value  of  the  goods  does  not  exceed  $100  per  package, 
nor  $8  per  cubic  foot,  and  the  freight  thereon  has  been 
adjusted  upon  such  valuation,  and  no  oral  declara- 
tion or  agreement  shall  be  evidence  of  a  different 
valuation. ' '  In  spite  of  this  clause  in  the  bill  of  lading, 
the  trial  justice  has  given  judgment  in  favor  of  the 
plaintiff  in  the  sum  of  $688,  which  represents  the 
actual  value  of  the  goods  which  had  been  lost. 

In  the  case  of  Mariani  Bros.,  Inc.,  v.  Wilson,  Sons 
d  Co.,  Ltd.,  188  App.  Div.  617,  the  court  reiterated 
the  well-settled  rule  **  that  a  carrier  may  limit  its 


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Stabace  &  Co.,  Inc.,  r.  Rapokel  S.  S.  Like,  Inc.  113 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

lia^bility  for  damages  occasioned  by  its  own  negli- 
gence by  a  contract  fairly  made  with  the  shipper  agree- 
ing on  a  valuation  of  the  property  carried,  with  the 
rate  of  freight  based  on  the  condition  that  the  carrier 
assumes  liability  only  to  the  extent  of  the  agreed 
valuation. '*  In  that  case,  however,  the  court  pointed 
out  that  such  contracts  limiting  the  liability  of  the 
carrier  are  valid  only  where  '  *  the  rate  of  freight  is 
based  on  the  condition  that  the  carrier  assumes  the 
liability  only  to  the  extent  of  the  agreed  valuation/' 
and  that,  therefore,  **  the  *  essential  choice  of  rates' 
must  be  made  to  appear  before  a  carrier  can  success- 
fully claim  the  benefit  of  such  a  limitation  and  relief 
from  full  liability,''  and  the  trial  justice  has  appar- 
ently held  that  this  ''  essential  choice  of  rates  "  was 
not  shown  in  the  present  case. 

The  evidence  does  show  that  the  defendants  did 
have  two  rates,  and  that  one  of  the  rates  was  an 
ad  valorem  rate,  but  there  is  no  evidence  that  defend- 
ants filed  any  tariff  showing  such  rate  with  the  inter- 
state commerce  commission,  or  that  it  was  expressly 
offered  to  the  plaintiff's  agent  who  had  charge  of  this 
shipment,  and  this  agent  denies  that  he  knew  of  the 
existence  of  this  rate  or  of  the  clause  in  the  contract 
limiting  the  carrier's  liability.  The  shipment  by  the 
plaintiff  was  not  an  interstate  shipment,  and  the 
defendants  were,  therefore,  not  required  to  file  any 
tariff  with  the  interstate  commerce  commission.  The 
clause  limiting  the  liability  itself  constitutes  a  state- 
ment thfi^tthe  rates  were  based  upon  a  valuation  of  $100 
and  constitutes  a  notice  that  if  the  shipper  desired  to 
place  a  higher  valuation  on  the  goods  shipped,  he  must 
pay  a  higher  rate.  In  the  case  of  Mariani  Bros., 
Inc.,  V.  WUson,  Sons  d  Co.,  Ltd.,  supra,  the  court 
stated  in  regard  to  a  similar  clause :  '*  The  burden  was 
upon  the  plaintiff  to  show  that  there  was  no  alternative 


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114  Stabace  &  Co.,  Inc.,  v.  Bapobel  S.  S.  Line,  Inc. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

in  existence  or  that  he  was  refused  an  alternative  rate 
by  the  carrier.  He  was  informed  that  there  was  such 
a  rate  by  the  terms  of  the  bill  of  lading  and  it  was 
clearly  stated  that  unless  he  shipped  under  such  rate 
the  liability  would  be  limited.  In  the  absence  of  evi- 
dence to  the  contrary  the  presumption  is  in  favor  of 
the  statement  made  in  the  hill  of  lading. ' '  The  plain  ti  ff 
admits  that  this  statement  of  the  law  is  binding  upon 
this  court,  but  claims  that  it  has  overcome  this  pre- 
sumption by  its  affirmative  proof  that  it  did  not  know 
of  the  existence  of'  this  clause  in  the  contract  or  of 
the  existence  of  any  ad  valorem  rate.  If  the  plaintiff 
had  notice  of  the  existence  of  an  ad  valorem  rate  the 
benefit  of  which  he  could  secure  upon  request,  then 
plainly  the  defendants  were  not  required  expressly 
to  oflfer  such  rate  to  the  plaintiff.  Since  the  terms 
of  the  contract  itself  show  the  existence  of  such  a  rate, 
the  plaintiff  would  have  had  notice  of  *'  essential 
choice  of  rates  ''  if  it  had  read  the  contract.  The 
plaintiff  had  been  in  the  export  business  for  several 
years.  It  undoubtedly  knew  that  the  bill  of  lading 
delivered  by  the  defendants  contained  various  cove- 
nants and  conditions  which  were  intended  to  constitute 
the  terms  upon  which  the  shipment  was  delivered  and 
received,  and  the  defendants  cannot  be  deprived  of  the . 
benefit  of  any  such  terms  merely  because  the  plaintiff 
did  not  choose  to  read  their  contract  or  acquaint  itself 
with  its  terms. 

The  judgment  in  plaintiff's  favor  should,  therefore, 
be  reduced  to  the  sum  of  $288,  with  appropriate  costs 
in  tihe  court  below,  and  as  modified  affirmed,  with 
twenty-five  dollars  costs  to  the  appellants. 

Guy  and  Wagnbb,  JJ.,  concur. 

Judgment  modified  and  as  modified  affirmed,  with 
twenty-five  dollars  costs  to  appellants. 


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Taplingeb  &  Co.  V.  Ward  &  Co.  115 

MJ£C.]     Appellate  Term,  First  Department,  January,  1921. 


John  Taflikger  &  Co.,  Eespondent,  v.  Montgomery 
Ward  &  Co.,  Appellant. 

(Supreme  Court,  Appellate  Term,  First  Department,  December, 
1920,  Term  — filed  January,  1921.) 

Oorporatioiu  —  service  of  process  on  foreign  —  General  Corpora- 
tion Law,  §  16  —  when  ai&davit  of  service  of  summons  and 
complaint  insnfficient  —  vacating  judgment  taken  by  default 
on  such  an  aifildavit. 

The  statute  (General  Corporation  Law,  §  16)  requires  a 
foreign  corporation  doing  business  in  this  state  to  make  and 
file  in  the  office  of  the  secretary  of  state  a  designation  of  the 
person  upon  whom  service  of  process  against  the  corpora- 
tion may  be  made  in  this  state. 

Where  with  due  diligence  the  plaintiff  in  an  action  against 
such  a  corporation,  which  has  complied  with  section  16  of  the 
General  Corporation  Law,  could  have  ascertained  the  name 
of  the  person  designated  for  the  purpose  required  by  the 
statute,  and  the  affidavit  upon  which  a  default  judgment  was 
granted,  states  that  service  of  the  summons  and  complaint  was 
made  on  the  managing  agent  of  the  defendant  within  this 
state,  an  order  denying  a  motion  to  vacate  and  set  aside  the 
judgment,  on  the  ground  thai  the  papers  were  not  properly 
served,  will  be  reversed,  with  costs,  and  the  motion  granted, 
with  costs. 

Appeal  by  the  defendant  from  an  order  of  the 
Municipal  Court  of  the  city  of  Now  York,  borough  of 
Manhattan,  first  district,  denying  a  motion  to  vacate 
the  service  of  the  summons  and  the  judgment  entered 
by  default  on  such  service. 

Arthur  L.  FuUman,  for  appellant. 

Ludwig  M.  Wilson,  for  respondent. 

Lbhmak,  J.  The  plaintiff  has  obtained  a  judgment 
by  default  against  the  defendant.    After  the  judgment 


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1 1 6  Taplingeb  &  Co.  V.  Ward  &  Co. 


Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

was  entered  the  defendant  appeared  specially  and 
moved  to  vacate  and  set  aside  the  judgment  on  the 
ground  that  the  summons  and  complaint  were  never 
properly  served  upon  the  defendant.  The  original 
affidavit  of  service  upon  which  the  judgment  was 
granted  stated  that  service  was  made  on  the  managing 
agent  of  the  corporation  within  this  state.  Obviously 
this  affidavit  is  insufficient,  because  service  upon  a 
foreign  corporation  can  be  made  on  its  managing 
agent  within  this  state  only  where  no  designation  has 
been  made,  as  provided  in  section  16  of  the  General 
Corporation  Law,  or  if  neither  the  person  designated 
nor  an  officer  specified  in  subdivision  1  of  section  432 
of  the  Code  of  Civil  Procedure  can  be  found  with  due 
diligence.  After  this  motion  was  made  the  plaintiff 
filed  an  additional  affidavit,  but  this  affidavit,  even  if 
properly  received  after  entry  of  judgment,  is  insuffi- 
cient to  cure  the  defect.  It  appears  undisputed  that 
a  designation  was  made  by  the  defendant,  as  provided 
in  section  16  of  the  General  Corporation  Law,  and  the 
plaintiff,  therefore,  could  not  serve  the  summons  and 
complaint  upon  the  defendant's  managing  agent  unless 
the  person  so  designated  could  not  with  due  diligence 
be  found  within  this  state.  The  plaintiff  made  no 
attempt  to  find  out  whether  such  designation  had  been 
filed,  and  did  not  know  the  name  or  address  of  the 
person  designated,  and  of  course  made  no  effort  to 
find  this  person.  The  process  server  merely  took  the 
summons  and  complaint  to  the  defendant's  office  in 
this  state,  inquired  there  for  the  proper  person  upon 
whom  to  serve  the  papers  in  the  action,  and  was  in- 
formed by  defendant's  manager  that  he  was  the  proper 
person.  Neither  the  managing  agent  nor  any  other 
person  in  defendant's  employ  had  any  apparent 
authority  to  state  that  he  was  the  person  to  accept 
service  of  processes,  or  to  give  any  directions  as  to 


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Potter  v.  Kurlander  Bros.  &  H.  C.  &  S.  Co.     117 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

the  proper  person  upon  whom  process  was  to  be  served. 
The  defendant  was  required  under  the  law  to  file  in 
the  office  of  the  secretary  of  state  a  designation  of  the 
person  upon  whom  process  could  be  served,  and  no 
other  person  could  assume  to  act  in  place  of  the  person 
so  designated.  With  due  diligence  the  plaintiff  could 
have  found  out  the  name  of  that  person,  and  there  is 
not  a  scintilla  of  evidence  to  sustain  a  finding  that 
the  plaintiff  could  not  have  found  him  at  his  office  in 
the  defendant's  place  of  business,  or  that  he  would 
have  evaded  service. 

Order,  therefore,  reversed,  with  ten  dollars  costs, 
and  motion  to  vacate  the  service  of  the  summons  and 
the  judgment  entered  thereon  i«  granted,  with  ten 
doUars  costs. 

Guy  and  Wagner,  JJ.,  concur. 

Order  reversed,  with  ten  dollars  costs,  and  motion 
granted,  with  ten  dollars  costs. 


Charles  Potter  and  Another,  Appellants,  v.  Kurlan- 
der Bros.  &  Harfibld  Cloak  and  Suit  Company, 
Respondent. 

(Supreme  Court,   Appellate  Term,   First  Department,  December, 
1920,  Term  — filed  January,  1921.) 

Accord  and  satisfaction  —  what  not  —  written  order  for  goods  -— 
parol  evidence  of  unwritten  acceptance. 

Upon  the  trial  of  an  action  to  recover  the  unpaid  balance 
of  the  agreed  price  of  goods  to  be  manufactured,  sold  and 
delivered,  evidence  was  g^ven  in  support  of  the  allegations  of 
the  complaint.  During  the  cross-examination  of  defendant 
there  was  received  in  evidence  an  agreement  to  compromise 
the  dispute  between  the  parties  which  had  been  pleaded  in 
the  answer  as  a  defense  and  bar.     The  plaintiffs  then  rested 


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118      POTTEE  V.  KURLANDER  BrOS.  &  H.  C.  &  S.  Co, 

Appellate  Term,  First  Department,  January,  192L    [Yo].  114. 

their  case  and  a  motion  by  defendant  to  dismiss  the  complaint 
on  the  sole  ground  that  said  agreement  established  an  accord 
and  satisfaction  and  was  therefore  a  bar  to  the  action,  was 
granted.  Reld,  that  plaintiff,  having  made  out  a  prima  facie 
ease,  it  was  error  to  dismiss  the  complaint  as  manifestly  the 
agreement  was  merely  an  accord  and  not  an  accord  and 
satisfaction.    (P.  120.) 

The  agent  .of  plaintiffs  testified  that  as  the  result  of  con- 
versations defendant's  treasurer  gave  him  written  orders  which 
stated  fully  the  style  of  goods,  the  price  and  a  time  within 
which  delivery  was  to  be  made  and  also  the  tei^ms  of  pay- 
ment When  the  witness  was  asked  whether,  at  the  time  he 
received  the  order,  anything  was  said  by  him  to  defendant's 
treasurer  with  reference  to  the  time  of  delivery,  the  court 
excluded  the  testimony  on  sustaining  the  objection  of  defend- 
ant's counsel  that  oral  evidence  was  being  offered  to  vary  a 
written  instrument.  Reldy  that  in  the  absence  of  evidence  in 
writing  of  plaintiff's  acceptance  of  the  order,  the  exclusion 
of  the  testimony  was  error. 

Appeal  by  plaintiflfs  from  a  judgment  of  the  City 
Court  of  the  city  of  New  York,  di«mis«ing  the  com- 
plaint at  the  olose  of  the  plaintiflfs'  case,  after  a  trial 
by  the  court  and  a  jury. 

Joseph  Qans  (C.  Arthur  Jensen,  of  counsel),  for 
appellants. 

Louis  Sachs,  for  respondent. 

Wagner,  J.  This  action  was  brought  by  plaintiflfs 
to  recover  the  agreed  price  of  certain  merchandise 
which  they  claim  was  delivered  to  the  defendant  at 
its  request  and  not  paid  for.  The  defendant  in  its 
answer  denies  the  sale  and  delivery,  and  as  a  separate 
defense  alleges  that  an  agreement  w^as  made  between 
the  parties  which  provided  as  follows ^  the  defendant 
was  to  recall  certain  merchandise  which  it  had  refused 
to  accept  from  plaintiflfs,  and  which  was  at  the  time 
of  the  making  of  the  agreement  in  the  possession  of 
an  express  company,  and  w^as  to  pay  all  bills  it  then 


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POTTEE  V.  KURLANDER  BrOS.  &  11.  (\  &  S.  Co.       119 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

owed  plaintiff,  they  agreeing  to  allow  defendant  a 
reduction  of  fifty  dollars  on  the  moneys  due.  That 
after  the  execution  of  this  agreement  ''  the  defendant 
recalled  the  two  packages  specified  in  the  agreement, 
but  that  only  one  package  containing  ten  suits  was 
received  by  the  defendant  from  the  express  company.'* 
That  defendant  then  communicated  thife  fact  to  plain- 
tiffs demanding  that  they  deliver  the  remaining  pack- 
age containing  seventeen  suits,  which  the  defendant 
was  to  have  returned  to  it  under  the  agreement.  That 
the  plaintiffs  failed  to  make  any  further  delivery, 
and  that  thereafter  the  defendant  tendered  a  sum  it 
claimed  was  due  for  the  ten  suits  delivered,  less  an 
overpayment  it  claimed  it  had  previously  made,  and 
that  plaintiffs  refused  to  accept  the  same.  Then 
follows  an  allegation  that  the  defendant  has  always 
been  ready,  willing  and  able  to  carry  out  the  terms 
of  the  agreement,  **  but  that  the  plaintiffs  have  failed 
and  refused,  and  still  fail  and  refuse,  to  carry  out  any 
and  all  parts  of  said  agreement,"  and  demands  judg- 
ment that  the  complaint  be  dismissed. 

Upon  the  trial  the  plaintiffs  presented  evidence  to 
prove  the  allegation  of  their  complaint,  namely,  that 
certain  goods  were  ordered  in  writing  of  them  by 
defendant,  that  deliveries  were  made  pursuant  to  such 
orders,  that  there  was  due  to  plaintiffs  a  balance  of 
$315. 

During  his  cross-examination,  the  defendant's 
counsel  put  in  evidence  as  an  exhibit  in  its  behalf  the 
agnreenient  to  compromise  the  dispute  which  the 
defendant  had  alleged  in  its  answer  as  a  defense  and 
a  bar.  The  plaintiffs  then  rested  their  case,  where- 
upon defendant  moved  to  dismiss  the  complaint  upon 
the  sole  ground  that  the  agreement  alleged  in  the 
answer  and  in  ovideneo  established  an  accord  and  satis- 
faction between  the  parties,  and,  therefore,  was  a  bar 


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120    Potter  v.  Kurlander  Bros.  &  ii.  C.  &  S.  Co. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

to  plaintiff's  action.  The  court  granted  the  motion, 
and  plaintiffs  now  appeal  from  the  judgment  entered 
upon  the  dismissal  of  their  complaint. 

It  was  error  to  dismiss  the  complaint.  The  plain- 
tiffs had  established  a  prima  facie  case  for  money  due 
for  the  merchandise  delivered  under  an  agreement 
between  the  parties.  It  is  apparent,  as  disclosed  by 
the  agreement  attempted  to  be  set  up  as  an  accord 
and  satisfaction  and  from  the  cross-examination  of 
plaintiffs'  witness,  that  there  was  a  controversy  on 
the  question  of  timely  deliveries.  The  defendant 
undoubtedly  attempted  to  return  some  of  the  mer- 
chandise in  question,  because  it  claimed  deliveries  were 
not  made  within  the  time  specified  in  the  orders  given 
by  it.  Whether  there  were  untimely  deliveries  and 
whether  those  untimely  deliveries  constituted  a  mate- 
rial breach  of  the  contract  of  sale,  were  questions  of 
fact.  However,  failure  to  prove  full  performance  by 
plaintiffs  was  not  the  ground  of  the  dismissal  of  their 
complaint.  The  agreement  set  up  in  defendant's 
answer  as  a  defense  to  plaintiffs '  cause  of  action,  is  not, 
as  the  answer  itself  makes  manifest,  an  accord  and  sat- 
isfaction, and  therefore  is  not  a  bar  to  plaintiffs'  cause 
of  action.  It  is  merely  an  accord.  **  An  accord,"  says 
Sir  William  Blackstone,  *  *  is  a  satisfaction  agreed  upon 
between  the  party  injuring  and  the  party  injured, 
which,  when  performed  is  a  bar  to  all  actions."  3 
Black.  Comm.  15.  ^*An  accord  executory  without  per- 
formance accepted  is  no  bar;  and  tender  of  perform- 
ance is  insufficient."  Kromer  v.  Heinij  75  N.  Y.  574. 
In  the  case  at  bar  the  accord  was  never  satisfied,  and 
thus  it  is  no  bar  to  the  plaintiffs'  cause  of  action. 

During  the  trial  the  court  erroneously  excluded 
evidence  offered  by  plaintiffs.  Plaintiffs'  agent  testi- 
fied that  as  a  result  of  certain  previous  conversations, 
the  defendant's  treasurer  gave  him  written  orders  for 


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Klingenbeck  v.  Young.  121 


Misc.]     Appellate  Term,  First  Department,  January,  1921. 


the  merchandise  in  question.  The  orders  stated  fully 
the  style  of  goods  to  be  manufactured,  the  price  and 
a  time  within  which  deliveries  were  to  be  made,  and 
also  the  terms  of  payment.  There  was  no  written 
acceptance  of  the  orders  by  plaintiffs.  The  witness 
was  asked  by  plaintiffs '  counsel  whether  anything  was 
said  by  him  to  the  defendant's  officer  who  had  handed 
him  the  order,  with  reference  to  the  time  of  delivery 
provided  for  in  the  said  order.  The  question  was 
objected  to  by  defendant's  counsel  as  were  other  ques- 
tions along  the  same  line,  upon  the  ground  that  oral 
evidence  was  being  offered  to  vary  a  written  instru- 
ment, and  the  court  sustained  the  objection  and 
excluded  the  testimony.  Since  there  was  no  written 
evidence  of  acceptance  by  the  plaintiffs  of  the  order, 
oral  proof  was  permissible  to  show  upon  what  changed 
terms,  if  any,  the  plaintiffs  accepted.  We  allude  to 
this  error  since  there  must  be  a  new  trial  of  the  action. 

Guy  and  Lehman,  J  J.,  concur. 

Judgment   reversed  and   new  trial  granted,  with 
costs  to  appellant  to  abide  event. 


Elbonore  K.  Klingenbeck  and  Another,  Landlords, 
Appellants,  v.  Edward  Warren  Young,  Tenant, 
Respondent. 

(Snpreme  Court,   Appellate  Term,  First  Department,  Deeember, 
1920,  Term  — filed  January,  1921.) 

Lanoiora  And  tenant  —  anmmary  proceedings  —  objectionable  ten- 
ant —  when  diatniwial  of  petition  is  error  —  no  appeal  nnless 
a  final  order  is  entered. 

Upon  the  trial  of  a  summary  proceeding  instituted  October 
6,  1920,  against  a  holdover  tenant  of  an  apa  ment,  alleged  to 
be  objectionable,   the  landlord  produced  as  witnesses  several 


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122  KlilNGENBBCK  V.  YoUNG. 

Appellate  Term,  First  Department,  January,  1921.    [Vol.  114. 

oecupantB  of  apartments  in  the  same  and  adjoining  house,  who 
testified  to  conduct  on  the  part  of  defendant  sufficient  to  sus- 
tain the  specifications  in  the  petition  of  the  alleged  objection 
able  nature  of  his  occupancy,  but  none  of  them  could  testify, 
as  alleged  in  the  petition,  that  any  refuse  was  thrown  from 
the  windows  of  the  tenant's  apartment  or  that  any  piano 
therein  was  unreasonably  used  after  June,  1920.  Held,  that 
the  dismissal  of  the  petition  upon  the  ground  that  under  the 
statute  (Laws  of  1920,  chap.  942)  the  proceeding  could  be 
maintained  only  if  the  tenant  was  doing  objectionable  things 
at  the  time  the  proceeding  was  instituted,  was  error,  for  the 
reason  that  the  trial  judge  had  no  right  to  take  the  case  from 
the  jury  because  of  the  absence  of  evidence  that  the  objection- 
able acts  had  continued  over  the  summer. 

Where  no  final  order  has  been  entered  in  a  summary  pro- 
ceeding, an  appeal  from  a  dismissal  of  the  landlord's  petition 
must  be  dismissed. 

Appeal  from  a  judgment  of  the  Municipal  Court  of 
the  city  of  New  York,  borough  of  Manhattan,  seventh 
district,  dismissing  the  petition  of  the  landlords  to 
recover  possession  of  a  certain  apartment. 

Brussel  &  Beebe  (E.  Walter  Beebe,  of  counsel),  for 
appellant. 

Edwards,  O'Loughlin  &  George  (David  G.  George, 
of  counsel),  for  respondent. 

Per  Curiam.  On  the  6th  day  of  October,  1920,  the 
landlords  brought  a  summary  proceeding  against  the 
tenant,  alleging  that  the  tenant  holds  over  and  occupies 
premises  after  the  expiration  of  his  term,  and  that  the 
tenant  so  holding  over  is  objectionable,  that  he  has 
caused  and  permitted  to  be  thrown  from  the  window 
of  his  apartment  during  his  occupancy  dirt  and  refuse 
taken  from  the  said  apartment,  and  that  in  addition 
the  tenant  has  caused  or  permitted  the  use  of  a 
piano  in  such  a  way  **  by  long  hours  of  continuous 


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Klixgexbeck  v.  Young.  123 

Misc.]     Appellate  Term,  First  Department,  January,  1921. 

drumming  and  playing  to  annoy  and  become  a  nuisance 
to  the  other  tenants  occupying  other  parts  of  the  build- 
ing in  which  the  demised  premises  are  located."  At 
the  trial  the  landlords  produced  as  witnesses  several 
occupants  of  apartments  in  the  same  and  the  adjoin- 
ing house  who  testified  to  conduct  on  the  part  of  the 
defendant  sufficient  to  sustain  the  specifications  in  the 
petition  of  the  alleged  objectionable  nature  of  the 
tenant's  occupancy,  but  none  of  the  witnesses  could 
testify  that  any  refuse  was  thrown  from  the  windows 
of  tenant's  apartment  or  that  any  piano  in  that  apart- 
ment was  unreasonably  used  after  the  month  of  June, 
1920.  The  trial  judge  thereupon  dismissed  the  land- 
lords'petition,  stating  that  under  chapter  942  of  the 
Laws  of  1920  the  landlord  can  maintain  sununary  pro- 
ceedings against  a  tenant  who  is  holding  over  only 
"  if  this  tenant  is  doing  things  that  are  objectionable 
at  the  time  of  the  commencement  of  the  proceedings." 
We  have  no  doubt  that  the  interpretation  of  the 
statute  of  the  trial  justice  is  too  narrow.  The  statute 
requires  the  landlord  to  establish  *^  that  the  person 
holding  over  is  objectionable,"  but  that  fact  may 
naturally  be  established  by  evidence  of  conduct  at 
some  previous  time.  Subsequent  discontinuance  of 
the  objectionable  acts  and  remoteness  of  the  time 
when  they  were  performed  are  undoubtedly  factors 
to  be  considered  by  the  jury  in  regard  to  the  weight 
to  be  given  to  the  testimony,  but  the  trial  judge  had 
no  right  to  withdraw  the  case  from  the  jury  merely 
because  there  was  no  evidence  that  the  objectionable 
acts  had  continued  over  the  summer. 

The  record  shows  that  the  trial  judge  granted  the 
tenant's  motion  to  dismiss  the  petition,  but  no  appeal 
lies  from  a  dismissal  of  the  petition  until  a  final  order 
has  been  entered  thereon.  The  record  in  this  case  does 
not  show  that  any  final  order  was  ever  entered.    The 


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124    People  ex  bel.  Buffalo  Consistory  v.  Betz. 

Supreme  Court,  January,  1921.  [Vo\  114. 

paper  in  the  record  denominated  **  judgment  or 
verdict  ^'  has  none  of  the  characteristics  of  a  final 
order  or  judgment,  and  must  be  regarded  as  a  mere 
nullity.  The  appeal  must,  therefore,  be  dismissed 
without  costs  to  either  party. 

Present :  Guy,  Lehman  and  Wagner,  J  J, 
Appeal  dismissed,  without  costs  to  either  party. 


People  ex  rel.  Buffalo  Consistory,  etc.,  Relator,  v. 
John  C.  Betz  et  al..  Assessors,  etc..  Respondents. 

(Supreme  Court,  Erie  Special  Term,  January,  1921.) 

Tax  Law,  §  4(7)  — real  estate  of  fraternal  corporation,  if  leased, 
not  exempt  from  taxation.  . 

Power  to  lease  given  by  the  by-laws  of  a  fraternal  corpora- 
tion is  not  equivalent  to  a  declared  purpose  to  lease  set  forth 
in  its  incorporation  papers,  and  where  such  a  corporation, 
having  leased  its  real  estate  to  other  fraternal  bodies  at  an 
annual  rental,  fails  to  establish  that  it  was  created  for  that 
purpose,  the  real  estate  is  not  exempt  from  taxation  under 
section  4(7)  of  the  Tax  Law. 

Motion  to  confirm  report  of  referee  in  certiorari 
proceedings  to  obtain  exemption  from  taxation  of 
relator's  real  estate. 

George  J.  Feldman,  for  motion. 

George  L.  Pomeroy,  opposed. 

Brown,  J.  The  relator  seeks  exemption  from  taxa- 
tion of  the  southerly  parcel  of  its  real  estate,  upon 
the  ground  that  it  is  a  fraternal  corporation  created 
to  maintain  its  cathedral  building  for  its  meetings 


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People  ex  rel.  Buffalo  Consistory  v.  Betz.     125 

Misc.]  Supreme  Court,  January,  1921. 

and  for  the  accommodation  of  other  fraternal  bodies 
or  associations,  the  entire  net  income  of  whicli  is 
exclusively  applied  or  to  be  used  to  maintain  the 
Masonic  Home  at  Utica,  under  the  provisions  of  sec- 
tion 4,  subdivision  7,  of  the  Tax  Law.  The  cathedral 
building  is  used  by  the  relator  for  two  purposes :  For 
its  meetings  and-  for  the  meetings  of  other  associa- 
tions. For  the  occupation  of  this  building  by  the  other 
associations  an  annual  rental  is  charged.  The  pur- 
pose of  the  use  of  this  real  estate  by  the  relator  for 
its  meetings  seems  to  be  established  and  declared  in 
the  certificate  of  the  incorporation  of  the  relator  in 
1902.  In  1905  the  relator  surrendered  its  charter  of 
1902  and  elected  to  become  incorporated  under  the 
provisions  of  the  Benevolent  Orders  Law.  NotTiing 
seems  to  have  been  done  to  carry  such  election  into 
execution,  save  to  file  such  election  with  the  secretary 
of  state.  It  is  very  doubtful  whether  there  can  be 
found  in  the  record  submitted  a  stated  purpose  set 
forth  in  the  relator  ^s  incorporation  papers  that  the 
cathedral  is  maintained  for  its  meetings.  Assuming, 
however,  that  such  purpose  existed,  it  is  believed  that 
it  can  not  be  established  from  the  record  that  the  use 
of  relator's  property  by  other  associations  is  based 
upon  an  existing,  stated  purpose  set  forth  in  its  incor- 
poration charter.  It  seems  to  be  the  law  that  if  the 
relator's  real  estate  be  rented  to  other  associations, 
the  purpose  of  such  leasing  must  be  set  forth  in  the 
relator's  charter,  or  exemption  will  be  denied  it. 
People  ex  rel.  Mizpah  Lodge  v.  Burke,  228  N.  Y.  245. 
In  July,  1915,  the  relator's  by-laws  were  adopted 
providing  that  its  real  estate  *'  shall  not  be  rented  or 
let  to  any  person,  corporation,  association  or  body, 
except  to  other  fraternal  corporations,  associations 
or  bodies."  This  by-law  is  permissive  only.  Under 
it  the  relator's  trustees  have  undoubted  power  to  lease 


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126    People  ex  rbl.  Buffalo  Consistoby  v.  Betz. 

Supreme  Court,  January,  1921.  [Vol.  114. 

relator  ^8  real  estate  to  other  fraternal  bodies.  They 
have  that  power  under  the  Benevolent  Orders  Law. 
Power  to  lease  is  not  equivalent  to  a  declared  purpose 
to  lease,  made  evident  at  relator's  creation.  People 
ex  rel.  Mizpah  Lodge  v.  Burke,  supra.  The  quoted  by- 
law is  not  a  statement  that  the  relator's  real  estate  is 
maintained  for  the  accommodation  of  other  fraternal 
bodies.  The  plain  reading  of  the  by-law  is  to  the 
effect  that  if  the  real  estate  be  rented  it  shall  be 
rented  only  to  other  fraternal  bodies.  Does  the  grant- 
ing of  the  restricted  power  to  lease  only  to  other  fra- 
ternal bodies  comply  with  the  statutory  requirement 
that  the  relator  must  have  been  created  to  maintain 
its  building  for  the  accommodation  of  other  fraternal 
bodies,  if  it  leases  to  others!  In  view  of  the  strict  < 
interpretation  by  the  Court  of  Appeals  in  People  ex 
rel.  Mizpah  Lodge  v.  Burke,  supra,  of  the  statute  under 
consideration,  the  holding  must  be  that  the  relator  has 
not  established  that  it  was  created  for  the  purpose  of 
leasing  its  real  estate.  In  that  case  it  was  held  that 
the  creation  of  the  fraternal  association  for  the  pur- 
pose of  affording  accommodation  to  other  fraternal 
bodies  could  not  be  inferred  from  the  existence  of 
power  to  lease  its  real  estate  for  the  accommodation 
of  other  fraternal  bodies.  The  relator,  having  leased 
its  real  estate  and  not  having  established  that  it  was 
created  for  that  purpose,  is  not  entitled  to  the  benefit 
of  the  statute.    Motion  to  confirm  will  be  granted. 

Motion  granted. 


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National  Pabk  Bank  v.  Old  Colony  Trust  Co.     127 


Miae.]  Supreme  Court,  January,  1921. 


National  Park  Bank  of  New  York,  Plaintiff,  v.  Old 
Colony  Trust  Company,  Defendant. 

(Supreme  Court,  New  York  Special  Term,  January,  1921.) 

Banks  and  banking  —  negotiable  instnunents  —  when  temporary 
injunction  granted  by  court  of  sister  state  has  no  extra-terri- 
torial eifect. 

Defendant,  a  Massachusetts  corporation,  by  a  letter  of  credit 
issued  by  it  agreed  with  the  drawers  and  indorsers  and  bona 
fide  holders  of  drafts  drawn  thereunder  and  in  compliance 
therewith  that  such  drafts  would  be  duly  honored  upon  due 
presentment  if  accompanied  by  the  documents  mentioned  in  the 
letter  of  credit.  In  an  action  upon  a  draft  drawn  under  the 
letter  of  credit  and  delivered  to  plaintiff,  a  resident  of  the 
State  of  New  York,  for  a  valuable  consideration,  it  was  uncon- 
troverted  that  no  part  of  plaintiff's  duties  in  reapect  of  any 
contractual  relation  arising  from  an  assignment  of  the  credit, 
assented  to  by  defendant  in  writing,  and  negotiations  of  the 
draft,  remained  unperformed.  Held,  that  an  injunction  pen- 
dente lite  purporting  to  have  been  granted  by  the  Superior 
Court  of  Massachusetts,  restraining  defendant  from  making 
payment  under  the  credit  had  no  extra-territorial  force  or 
effect  in  the  courts  of  the*  State  of  New  York,  and  was  no 
defense  to  the  action,  it  appearing  affirmatively  from  the 
answer  of  defendant,  that  the  plaintiff  herein  was  not  a  party 
to  that  action,  and  plaintiff'?;  motion  for  judgment  on  the 
pleadings,  will  be  granted. 

The  defense  sought  to  be  established  gave  no  ground  under 
the  true  rule  of  judicial  comity  warranting  recognition  in  our 
courts,  since  the  result  would  be  to  utterly  defeat  the  acknowl- 
edged rights  of  the  plaintiff  and  deny  it  its  day  in  court,  and 
be  entirely  contrary  to  the  judicial  decisions  in  this  state,  that 
a  letter  of  credit  is  a  complete  and  independent  contract. 

Motion  for  judgment  on  the  pleadings. 

Louis  F.  Doyle,  for  plaintiff. 

Breed,  Abbott  &  Morgan    (Eugene  W.  Leake,  of 
counsel)^  for  defendant. 


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128    National  Pakk  Bank  v.  Old  Colony  Trust  Co. 

Supreme  Court,  January,  1921.  [Vol.  114. 

McAvoY,  J.  The  plaintiflF  is  a  domestic  banking 
corporation  organized  under  the  laws  of  the  United 
States,  and  has  its  principal  place  of  business  in  New 
York  county,  state  of  New  York,  and  the  defendant  is 
a  Massachusetts  corporation  having  its  principal  place 
of  business  in  Boston,  commonwealth  of  Massachusetts. 
In  May  the  defendant  issued  a  letter  of  credit  to  one 
Eugen  Boissevain  &  Co.,  Inc.,  of  New  York,  whereby 
it  authorized  Boissevain  &  Co.  to  draw  a  sight  draft 
not  exceeding  the  aggregate  amount  of  $221,200  on 
the  National  Bank  of  Commerce,  New  York,  covering 
shipments  of  sugar.  The  defendant  agreed  in  the 
letter  of  credit  **  with  the  drawers  and  indorsers  and 
bona  fide  holders  of  draft  drawn  under  and  in  compli- 
ance with  this  letter  of  credit  that  the  same  shall  be 
duly  honored  upon  presentation  at  the  ofl&ce  of 
National  Bank  of  Commerce,  in  New  York  City,  if 
accompanied  by  the  documents  that  were  therein  men- 
tioned.^^ Subsequently,  the  defendant  assented  in 
writing  to  the  assignment  of  this  credit  to  the  plain- 
tiff, the  National  Park  Bank.  In  October,  1920,  a 
draft  was  drawn  by  Boissevain  &  Co.  under  this  credit 
of  $220,442.19  on  the  National  Bank  of  Commerce,  New 
York,  payable  to  the  plaintiff,  and  this  draft  was 
delivered  to  the  plaintiff  for  a  valuable  consideration, 
plaintiff  having  all  of  the  essentials  of  a  ho^ta  fide 
holder  of  a  draft  as  a  negotiable  instrument.  The 
draft  conformed  fully  with  the  letter  of  credit,  had 
attached  all  of  the  documents  required  by  the  letter 
of  credit,  and  the  documents  fully  conformed  with  the 
provisions  of  the  credit.  The  plaintiff,  in  parting  with 
the  considerations  which  it  had  paid  for  the  draft, 
acted  in  reliance  on  defendant's  promise  contained  in 
the  letter  of  credit.  When  the  draft  and  documents 
were  presented  to  the  National  Bank  of  Commerce, 
all  due  forms  being  observed,  on  October  27, 1920,  and 


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National  Pabk  Bank  v.  Old  Colony  Tbust  Co.     129 

Misc.]  Supreme  Court,  January,  1921. 

later  when  presented  to  the  defendant  itself,  the  Old 
Colony  Trust  Company,  of  Boston,  on  October  twenty- 
ninth  last,  the  draft  was  not  paid.  It  is  uncontroverted 
that  no  part  of  the  plaintiff's  duties  in  respect  of  any 
of  the  contractual  relations,  which  arise  from  the 
assignment  of  the  credit  and  negotiations  of  the  draft, 
remain  unperformed.  The  alleged  complete  defense 
to  the  action  is  an  injunction  purporting  to  have  been 
issued  by  the  Superior  Court  of  Massachusetts 
restraining  the  defendant  from  making  payment  under 
the  credit.  The  precise  language  of  the  injunction  of 
the  Massachusetts  court  is  that  this  defendant  (Old 
Colony  Trust  Company)  is  enjoined  and  restrained 
**  from  accepting  or  otherwise  recognizing  the  validity 
of  any  draft  drawn  under  or  pursuant  to  said  letter  of 
credit  dated  May  15, 1920,  by  Eugen  Boissevain  &  Co., 
Inc.,  or  by  any  other  person,  firm  or  corporation  what- 
soever, as  assignee  or  holder  thereof."  This  state  of 
the  pleadings  gives  plaintiff  the  right  to  judgment  for 
the  amount  of  the  defaulted  draft,  unless  the  plea  of 
the  continuance  in  force  of  this  injunction  is  a  com- 
plete defense  to  plaintiff's  action.  There  is  no  doubt 
that  the  injunction,  of  itself,  as  a  mandate  of  a  for- 
eign court  has  no  force  or  effect  extraterritorially  in 
the  courts  of  this  state  under  the  full  faith  and  credit 
clause  of  the  Federal  Constitution.  It  appear®  aflSrma- 
tively  from  the  answer  that  this  plaintiff  was  not  a 
party  to  the  action  in  Massachusetts,  and  that  the  sole 
parties  were  one  E.  B.  Sherburne  &  Company,  plain- 
tiff, the  Old  Colony  Trust  Company  and  Eugen  Bois- 
sevain &  Co.,  Inc.,  defendants.  Even  where  effect  is 
given  to  judgments  and  decrees  of  the  courts  of  sister 
states,  it  is  a  basic  principle  that  the  court  which  gave 
the  judgment  or  decree  must  have  jurisdiction  of  the 
parties  upon  whose  rights  it  is  adjudicating  or  pre- 
tending to  adjudge.  The  Massachusetts  court  never 
9 


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130    National  Pabk  Bank  v.  Old  Colony  Trust  Co. 

Supreme  Courts  January,  1921.  [Vol.  114. 

obtained  or  had  jurisdiction  of  either  the  plaintiff's 
person  or  its  property,  and  had  no  power  to  adjudicate 
in  respect  to  its  rights  under  the  draft  and  assign- 
ment of  credit  herein  so  as  to  bind  the  plaintiff  by  its 
adjudication.  Pennoyer  v.  Neff,  95  U.  S.  714;  Had- 
dock  V.  Haddock,  201  id.  562.  The  F«d«ral  Constitu- 
tion's provision  that  full  faith  and  credit  shall  be 
given  in  each  state  to  judicial  proceedings  of  other 
states  is  not  a  ground  upon  which  the  courts  in  which 
the  judgment  of  the  sister  state  may  be  presented  may 
be  precluded  from  inquiring  into  the  jurisdiction  of 
the  court  which  renders  the  judgment  over  the  sub- 
ject matter  of  the  suit  or  the  parties  affected  by  it,  or 
into  the  facts  necessary  to  give  the  original  court  ju- 
risdiction. Pennoyer  v.  Neff,  supra.  Defendant  recog- 
nizes that  lack  of  jurisdiction  of  the  Massachusetts 
court  over  the  plaintiff  here  must  inhibit  a  claim  that 
the  Massachusetts  injunction  should  be  recognized  in 
New  York  on  account  of  the  full  faith  and  credit  clause 
of  the  National  Constitution,  and  in  addition  is  aware 
that  since  the  injunction  is  a  temporary  one  and  may 
not  be  made  final  until  after  the  trial  in  Massachusetts 
it  is  not  such  a  judgment  as  would,  in  any  event,  be 
recognized  by  the  courts  of  this  state,  because  it  is  not 
a  definitive  judgment  on  the  merits.  The  rule  is  of 
common  knowledge  tliat  the  definitive  judgment  of  a 
court  of  another  state  between  the  same  parties  on 
the  same  cause  of  action  on  the  merits  of  the  case  is 
conclusive,  but  it  must  be  a  definitive  judgment  on  the 
merits  only.  Where  the  judgment  is  merely  interlocu- 
tory the  determination  of  the  question  by  the  court 
which  rendered  it  did  not  settle  and  adjudge  finally 
the  rights  of  the  parties.  It  is  based  upon  a  special 
application  pending  the  suit  which  by  our  practice 
might,  on  leave  had,  be  renewed  on  new  state  of  facts 
presented.    Walsh  v.  Durkin,  12  Johns.  99.    It  seems 


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National  Pabk  Bakk  v.  Oli»  Colony  Tbust  Co.     131 


Misc.  J  Supreme  Court,  tTanuary,  1921. 

to  be  anomalous  to  give  a  decision  upon  an  interlocu- 
tory motion  or  application  in  another  state  as  full  a 
degree  of  faith  and  credit,  or  to  regard  the  same  as 
possessing  equal  dignity  of  conclusiveness,  as  would 
be  given  to  a  final  adjudication  between  the  parties 
over  all  of  whom  the  court  had  full  jurisdiction  in  a 
decision  of  the  main  controversy  between  them  in  this 
state.  The  principle  that  the  courts  of  one  state  or 
jurisdiction  will  give  effect  to  the  laws  and  judicial 
decisions  of  another,  not  as  a  matter  of  obligation,  but 
out  of  deference  and  respect,  conunonly  called  judicial 
comity,  is  not  transgressed  by  ruling  adversely  to  the 
claim  liere  made.  The  rule  of  comity  is  based  on  the 
theory  that  a  court  which  first  asserted  jurisdiction 
will  not  be  interfered  with  in  the  continuance  of  its 
assertion  by  another  court  of  foreign  jurisdiction  until 
it  is  convenient  and  desirable  that  the  one  give  way 
to  the  other.  Mast,  Foos  d  Co.  v.  Stover,  177  U.  S.  485. 
Comity  is  not  a  rule  of  law,  but  one  of  practice,  con- 
venience and  expediency.  It  is  something  more  than 
mere  courtesy,  and  implies  only  deference  to  the  opin- 
ions of  others,  since  it  is  of  substantial  value  in  secur- 
ing uniformity  of  decision  and  discouraging  repeated 
litigation  of  the  same  question.  Its  obligation,  how- 
ever, is  not  imperative.  If  this  were  so,  the  indiscreet 
action  of  one  court  might  become  a  precedent  made 
more  weighty  by  each  successive  adjudication,  until  the 
whole  country  was  tied  down  to  an  unsound  principle. 
Comity  persuades,  but  it  does  not  command.  It 
demands  that  no  one  should  abdicate  his  individual 
judgment,  but  only  that  deference  shall  be  paid  to  the 
judgment  of  other  coordinate  tribunals  (words  taken 
from  the  text  case,  supra).  The  defense  here  sought 
to  be  established,  as  appears  from  the  pica  respecting 
the  action  of  the  Massachusetts  court,  gives  no  ground 
under  the  true  rule  of  comity  warranting  recognition 


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132    National  Park  Bank  v.  Old  Colony  Tbust  Co. 


Supreme  Court,  January,  1921.  [Vol.  114. 

in  our  courts,  since  the  result  will  be  to  utterly  defeat 
the  acknowledged  rights  of  the  plaintiff,  a  resident  of 
this  state,  and  deny  the  plaintiff  its  day  in  court,  and 
be  entirely  contrary  to  rulings  in  this  state  holding 
that  a  letter  of  credit  is  a  complete  and  independent 
contract.  Frey  <&  Son,  Inc.,  v.  Sherburne  Co.,  193  App. 
Div,  849.  Nothing  is  shown  which  would  indicate  any 
privity  of  contract  between  the  plaintiff  here  and  the 
Sherburne  Company,  which  is  plaintiff  in  the  Massa- 
chusetts action,  and  no  indication  is  given  of  any  valid 
ground  upon  which  the  defendant  may  be  restrained  at 
the  instance  of  the  Sherburne  Company  from  paying 
its  obligation  to  the  plaintiff.  Whatever  rights^  Sher- 
burne &  Company  may  have  in  the  premises  must  be 
founded  upon  the  contract  made  for  the  sugar,  or 
under  some  other  contract,  for  there  was  nowhere  in 
the  letter  of  credit  any  indication  that  they  are  con- 
cerned with  that  document.  No  prejudice  accrues  to 
them  if  the  defendant  pays  under  the  letter  of  credit. 
They  have  a  complete  and  adequate  remedy  at  law  to 
recover  damages  sustained  by  any  breach  of  the  con- 
tract of  sale,  and  against  the  bank  which  issued  the 
letter  of  credit  for  violation  of  any  requirement  of 
the  credit.  Frey  <&  Son,  Inc.,  v.  Sherburne  Co.,  supra. 
Motion  for  judgment  on  the  pleadings  is  granted. 

Motion  granted. 


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People  v.  Bbtant  Co.  133 


Misc.]  Supreme  Court,  January,  1921. 


The  People  of  the  State  of  New  York,  Plaintiff,  v. 
Alexander  Bryant  Co.,  Milton  Schnaier,  Milton 
ScHNAiER.  Contracting  Corporation,  Morris  Jargho, 
Jacob  Jarcho  and  Jabcho  Brothers,  Inc.,  Defend- 
ants. 

(Supreme  Court,  Extraordinary  Trial  Term,  January,  1921.) 

General  Business  Law,  §§  341,  846  —  witnesses  testifying  before 
legislative  committee  not  entitled  to  immimity  from  prosecn- 
tion  under  said  statute. 

The  '^Lockwood  committee"  is  not  a  "court,  magistrate  or 
referee"  within  the  meaning  of  section  345  of  the  General 
Business  Law. 

Where  because  of  testimony  given  by  them  as  witnesses 
before  the  joint  committee  of  the  senate  and  assembly  (Lock- 
wood  committee),  as  to  their  dealings  with  each  other  and 
with  others,  defendants  were  charged  by  indictment  with  a 
violation  of  section  341  of  the  General  Business  Law,  they 
are  not  entitled  to  the  immunity  from  prosecution  granted  by 
section  345  of  said  statute. 

Motion  to  dismiss  indictment. 

Charles  L.  Newton,  Attorney-General  (Deputy 
Attorney-General  Kenneth  M.  Spence,  of  counsel),  for 
People. 

Milton  Mayer,  for  defendants. 

McAvoY,  J.  The  defendants  are  charged  with  the 
violation  of  section  341  of  the  Business  Law  of  the 
state  of  New  York,  which  is  known  as  the  Donnelly 
Law.  Defendants  Schnaier  and  Jarcho  were  sub- 
poenaed as  witnesses  in  October  last  to  testify  in  a 
proceeding  and  investigation  held  by  the  joint  com- 
mittee of  the  senate  and  assembly,  known  as  the  Lock- 
wood  committee.  They  gave  certain  testimony  as  to 
their  dealings  with  each  other  and  with  others  and 


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134  People  v.  Bryant  Co. 


Supreme  Court,  January,  1921.  [Vol.  114. 

claim  that  because  of  the  testimony  so  given  they  are 
entitled  to  immunity  from  prosecution  under  the  said 
Donnelly  Act.  The  provision  of  section  345  of  the 
Business  Law,  which  constitutes  the  so-called  immu- 
nity provision,  is:  *'  Section  345.  No  person  excused 
from  answering.  No  person  shall  be  excused  from 
attending  and  testifying,  or  from  producing  any  books, 
papers  or  other  documents  before  any  court,  magis- 
trate or  referee,  upon  any  investigation,  proceeding 
or  trial,  pursuant  to  or  for  the  violation  of  any  of  the 
provisions  of  this  article,  upon  the  ground  or  for  the 
reason  that  the  testimony  or  evidence,  documentary 
or  otherwise,  required  of  him  may  tend  to  convict  him 
of  a  crime  or  subject  him  to  a  penalty  or  forfeiture; 
but  no  person  shall  be  prosecuted  or  subjected  to  any 
penalty  or  forfeiture,  for  or  on  account  of  any  trans- 
action, matter  or  thing,  concerning  which  he  may  so 
testify,  or  produce  evidence,  documentary  or  other- 
w^isc.  And  no  testimony  so  given  or  produced  shall  be 
received  against  him  upon  any  criminal  investigation, 
proceeding  or  trial.''  It  does  not  seem  to  me  that  any 
sound  argument  can  be  made  for  a  ruling  that  the  so- 
called  Lockwood  committee  is  included  in  the  language 
of  section  345  of  the  Penal  Law  referring  to  '*any 
court,  magistrate  or  referee. ' '  The  authority  on  which 
reliance  of  defendants  is  based  is  People  v.  Sharp, 
107  N.  Y.  427.  The  defendant  in  that  criminal  action 
had  appeared  before  a  legislative  committee  in  obedi- 
ence to  a  subpoena  and  had  testified  as  a  witness  in  the 
investigation  or  proceeding  conducted  by  said  legis- 
lative committee  to  investigate  the  alleged  crime  of 
bribery.  The  section  then  covering  testimony  with 
respect  to  bribery  was  the  present  section  38  of  the 
Penal  Law,  then  known  as  section  79  of  the  Penal  Code. 
It  provided  that  a  person  offending  against  any  pro- 
vision of  the  Code  relating  to  bribery  is  a  competent 
witness  against  another  person  so  offending  and  may 


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People  v.  Bryant  Co.  135 

Misc.]  Supreme  Court,  January,  1921. 

be  compelled  to  attend  and  testify  upon  any  trial, 
hearing,  proceeding  or  investigation  in  the  same  man- 
ner as  any  other  person,  and  that  a  person  so  testify- 
ing should  not  thereafter  be  liable  to  indictment,  prose- 
cution or  punishment  for  said  bribery.  Sharp  con- 
tended that  the  meaning  and  spirit  of  this  statute  was 
that  the  disclosures  made  by  him  before  the  senate  corn- 
mitten  were  privileged  and  could  not  be  used  against 
him  on  his  trial,  the  People  claiming  that  section  79  of 
the  Penal  Code  did  not  embrace  an  investigation  by  a 
senate  committee,  but  was  limited  to  such  testimony 
only  as  might  be  given  upon  a  trial,  hearing,  proceed- 
ing or  investigation  in  the  course  of  a  criminal  action ; 
that  it  had  no  application  to  such  testimony  as  might 
be  given  in  the  course  of  legislative  proceedings  or 
investigations.  This  claim  of  the  People  was  over- 
ruled by  the  court,  and  it  was  held  that  the  use  of  the 
words  **  upon  any  investigation''  referred  to  an 
inquiry  which  the  legislature  had  the  right  to  make, 
and  which,  in  view  of  the  recitals  in  the  resolution 
creating  it,  it  was  its  duty  to  make,  in  order  that  the 
abuses  which  were  disclosed  might  be  cured  by  further 
action  by  the  legislature  or  by  the  People.  The  court 
pointed  out  that  full  effect  was  to  be  given  to  the  force 
and  validity  of  every  word,  so  that  no  part  of  the 
section  would  be  annulled  or  rendered  nugatory,  and 
with  that  mode  of  construction  it  cannot  be  doubted 
that  Sharp's  case  was  brought  literally  within  the 
language  of  the  section  79  of  the  then  Penal  Code. 
Sharp  was  a  person  offending  against  one  of  the 
specific  provisions  of  the  Code  in  relation  to  bribery. 
He  was  accused  and  had  been  convicted  of  giving  a 
bribe.  He  was  qualified  under  the  section  as  a  com- 
petent witness.  He  was  testifying  against  another 
person  so  offending  against  one  of  the  provisions  of 
the  Code  relating  to  bribery.  He  was  a  witness  before 


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136  Pbopj^  v.  Bbyant  Co. 

Supreme  Court,  January,  1921.  [Vol.  114, 

the  committee  in  relation  to  bribery.  He  was  a  wit- 
ness against  another  person  or  body  specifically 
acct»ed  in  the  reeolution  of  the  senate.  He  was  com- 
pelled to  attend  and  testify  against  another  person  or 
other  party  to  the  transaction.  The  testimony  was 
given  upon  an  investigation  duly  authorized,  and 
applying  the  natural  meaning  of  the  words  to  the  cir- 
cumstances of  that  case  there  was  no  incongruity  nor 
inconsistency  in  adapting  them  to  the  facts  then 
appearing.  The  General  Business  Law,  section  345 
(Donnelly  Act),  does  not  include  any  term,  idea,  word 
or  concept  or  permit  an  inference  from  any  of  such 
comparable  to  the  words  used  in  the  bribery  section 
(former  Penal  Code,  §  79)  **  any  investigation.'' 
This  latter  is  a  comprehensive  and  all-including 
phrase  and  doubtless  bounds  all  investigations  in  the 
conduct  of  which  persons  might  be  called  by  authority 
as  witnesses  to  testify  under  oath  concerning  any  mat- 
ter. And  it  would  include,  if  taken  literally,  the  action 
of  a  legislative  conmiittee,  according  to  the  direction 
given  it,  and  acting  with  authority  to  subpoena  wit- 
nesses and  enforce  their  attendance  and  examine  them 
under  oath.  It  did  not  exclude  every  sort  of  hearing 
or  investigation  excepting  only  a  judicial  investiga- 
tion by  a  regularly  constituted  court,  and  although  the 
investigation  may  be  only  for  the  collection  of 
information  required  for  the  proper  performance  by 
the  legislature  of  its  own  functions,  it  would,  never- 
theless, be  a  proceeding  requiring  witnesses  and  power 
to  compel  their  attendance.  A  comparison  of  the  stat- 
ute under  which  Sharp  was  held  iomiune  and  section 
345,  supra  (Donnelly  Act),  reveals  the  intent  of  the 
legislature  not  to  include  in  its  provisions  any 
immunity  of  persons  testifying  as  witnesses  for  testi- 
mony compelled  or  voluntarily  given  before  a  legis- 
lative   committee    conducting    **  any    investigation." 


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Model  Building  &  Loan  Assn.  v.  Reeves.     137 

Misc.]  Supreme  Court,  January,  1921. 

The  tribunals  before  which  immunity  may  be  secured 
for  testimony  given  under  that  act  are  '  *  any  court, 
magistrate  or  referee  upon  any  investigation,  pro- 
ceeding or  trial  pursuant  to  or  for  a  violation  of  any 
of  the  provisions  of  this  article  *  *  *."  Where  the 
words  are  without  ambiguity  and  the  meaning  une- 
quivocal construction  is  not  part  of  the  business  of  a 
court.  The  disparate  features  of  this  case  and  the 
Sharp  case  are  outstanding  and  inescapable.  The 
attendance  of  the  defendants,  who  claim  immunity 
here,  before  the  Lockwood  committee  as  witnesses, 
and  who  now  ask  a  dismissal  of  the  indictment  found 
against  them  by  motion  because  of  this  provision  of 
law  (§  345)  and  because  of  the  giving  of  testimony 
involving  transactions,  matters  or  things  concerning 
which  they  did  so  testify,  did  not  entitle  them  to  the 
immunity  granted  under  the  Donnelly  Act,  and  their 
motion  to  annul  the  action  of  the  grand  jury  and 
dismiss  the  indictments  against  them  and  discharge 
them  because  of  such  alleged  immunity  is  denied. 

Motion  denied. 


The  Model  Building  and  Loan  Association  of  Mott 
Haven,  by  George  I.  Skinner,  as  Superintendent 
of  Banks  of  the  State  of  New  York,  Plaintiff,  v. 
Alfred  G.  Reeves,  Ambrose  G.  Todd,  Harold 
Swain,  Alexander  Rowland  and  Herbert  Reeves, 
Defendants. 

(Snpreme  Court,  New  York  Special  Term,  January,  192L) 

PartnersMp  —  liability  of  flrm  for  fraud  of  one  partner  —  statnte 
of  limitetions  —  Code  Giv.  Pro.  §  382(5). 

A  firm  is  liable  for  the  fraud  of  one  partner  in  the  coarse 
of  the  transactions  and  business  of  the  partnership,  even  when 


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138    Model  Building  &  Loan  Assn.  v.  Reeves. 

Supreme  Court,  January,  1921.  [Vol.  114. 

the  other  partners  had  not  the  slightest  connection  with,  knowl- 
edge of  or  participation  in  the  fraud. 

Where  in  an  action  against  a  firm  with  which  plaintiff  had 
an  account,  for  the  misapplication  of  plaintiff's  money  by  one 
of  the  partners  without  the  knowledge  of  the  other  partners, 
no  claim  is  made  that  the  defendants  other  than  the  guilty 
partner  had  knowledge  of  or  participated  in  the  fraud,  the 
statute  of  limitations  prescribed  by  section  382(5)  of  the  Code 
of  Civil  Procedure  does  not  apply  except  in  so  far  as  it  relates 
to  the  claim  against  the  guilty  partner;  the  liability  of  the 
other  partners  ends  with  the  running  of  the  statute  from  the 
time  of  the  actual  wrong. 

Action  for  fraud. 

Phillips,  Mahoney  &  Liebel  (Jeremiah  T.  Mahoney 
and  J.  Archer  Hodge,  of  counsel),  for  plaintiff. 

O'Brien,  Boardman,  Parker  &  Fox  (Herbert  C. 
Smyth  and  Edwin  W.  Cady,  of  counsel),  and  Harold 
Swain,  for  defendants. 

McAvoY,  J.  There  has  been  a  complete  judicial  set- 
tlement of  the  doctrine  that  the  partners  of  a  firm  are 
liable  for  the  frauds  committed  by  either  or  any  of 
them  in  the  transaction  and  prosecution  of  the  partner- 
fi^hip  enterprise;  that  the  firm  is  bound  for  the  fraud 
committed  by  one  partner  in  the  course  of  the  transac- 
tions and  business  of  the  partnership,  even  when  the 
other  partners  have  not  the  slightest  connection  with, 
knowledge  of  or  participation  in  the  fraud.  Story 
Part.  108;  Griswold  v.  Haven,  25  N.  Y.  595.  The  firm 
being  liable  for  frauds  committed  by  one  of  its  mem- 
bers while  acting  for  the  firm  and  in  transacting  its 
business,  the  innocent  partners  cannot  divest  them- 
selves of  their  responsibility  on  the  ground  that  they 
never  authorized  the  commission  of  the  fraud  or  par- 
ticipated in  its  fruits.  Lindley  Part.  150.  All  the 
defendants  here  were  partners  and  all,  with  the  excep- 


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Model  Building  &  Loan  Assn.  v.  Reeves.     139 

Misc.]  Supreme  Courts  January,  192L 

tion  of  one,  are  conceded  to  have  been  entirely  guilt- 
less of  any  participation  in  the  fraud  perpetrated  by 
the  one.  But  it  is  impossible  for  them  to  escape  from 
the  consequences  that  legally  flow  from  the  relation 
they  assumed,  not  even  where,  as  in  this  instance, 
none  but  the  guilty  member  had  any  connection  with, 
knowledge  of  or  participation  in  the  fraud  or  its 
fruits.  The  defendants  are  liable  because  they  were 
partners  at  the  time  of  the  transactions  set  forth  in 
the  complaint  with  the  concededly  guilty  partner, 
whereby  the  plaintiff  suffered  loss  through  his  fraud. 
The  real  question  is,  has  the  plaintiff  lost  its  right 
to  recover  against  the  defendants  for  this  liability 
through  a  sufficient  lapse  of  time  to  cover  all  the  trans- 
actions within  any  provision  of  law  preventing  the 
maintenance  of  an  action  through  limitation!  Sec- 
tion 410  of  the  Code  of  Civil  Procedure  prescribes 
that:  **  Where  a  right  exists,  but  a  demand  is  neces- 
sary to  entitle  a  person  to  maintain  an  action,  the  time, 
within  which  the  action  must  be  commenced,  must  be 
computed  from  the  time,  when  the  right  to  make  the 
demand  is  complete;  except  in  one  of  the  following 
cases:  1.  Where  the  right  grows  out  of  the  receipt  or 
detention  of  money  or  property,  by  an  agent,  trustee, 
attorney,  or  other  person  acting  in  a  fiduciary  capacity, 
the  time  must  be  computed  from  the  time,  when  the 
person,  having  the  right  to  make  the  demand,  has 
actual  knowledge  of  the  facts,  upon  which  that  right 
depends.^*  There  is  no  question  but  that  this  pro- 
vision of  the  Statute  of  Limitations  runs  in  favor  of 
agents,  trustees  and  attorneys  whenever  the  obliga- 
tion upon  them  is  constructive  but  not  expressed,  and 
when  both  the  constructive  trustees  or  agents  as  well 
as  the  other  party  to  the  suit  were  ignorant  of  the 
facts  upon  which  the  obligation  is  sought  to  be  based. 
The  statute  does  not  run  in  favor  of  one  who  himself 


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140    Model  Building  &  Loan  Assn.  v.  Beeves. 

Supreme  Court,  January,  1921.  [Vol.  114. 

is  guilty  of  fraud  and  thereby  has  obtained  property 
as  a  constructive  trustee.  Here  there  was  a  misappli- 
cation of  the  plaintiff's  money;  it  was  made  by  a  part- 
ner of  the  defendants'  firm  without  their  knowledge 
or  participation  either  in  the  fraud  or  the  proceeds. 
Their  liability  as  trustees  or  attorneys  results  not 
from  any  act  of  theirs  or  of  the  plaintiff's,  but  from 
the  application  of  the  doctrine  of  equity  which  regards 
them  as  standing  in  that  relation  in  order  to  give  the 
plaintiff  a  remedy.  From  that  doctrine  and  principle 
of  equity,  and  not  from  any  fraud  or  knowledge  of 
fraud  or  misapplication,  a  contract  liability  to  make 
restoration  is  implied.  The  statute  runs  from  the  date 
of  the  wrong  which  raised  the  implication  where  a 
trustee  becomes  so  by  implication  or  construction.  It 
is  actual  fraud  against  which  the  statute  does  not  run 
until  it  is  discovered.  The  statute  commences  to 
run  against  constructive  fraud  as  soon  as  the  act  or 
omission  constituting  it  occurs.  Price  v.  Mulford, 
107  N.  Y.  303;  Finnegm  v.  McGuffog,  139  App.  Div. 
899;  affd.,  203  N.  Y.  342.  Under  subdivision  5,  section 
382,  of  the  Code  of  Civil  Procedure  '*an  action  to 
procure  a  judgment,  other  than  for  a  sum  of  money 
on  the  ground  of  fraud  in  a  case  which  on  the  31st 
day  of  December,  1846,  was  cognizable  in  the  Court 
of  Chancery,  must  be  commenced  within  six  years,  but 
the  cause  of  action  in  such  a  case  is  not  deemed  to 
have  accrued  until  the  discovery  by  the  plaintiff  or 
the  person  under  whom  he  claims  of  the  facts  consti- 
tuting the  fraud."  The  plaintiff  here  did  not  have 
any  knowledge,  actual  notice  or  information  as  to  the 
various  defalcations  and  misapplications  of  funds 
belonging  to  it  by  the  guilty  partner  defendant  prior 
to  February  1,  1917.  If  the  conceded  fraud  of  the 
defendant  guilty  of  the  actual  misapplications  is 
imputable  as  a  matter  of  law  to  each  of  the  defendants, 


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Model  Building  &  Loan  Assn.  v.  Beeves.     141 

Misc.]  Supreme  Court,  January,  1921. 

this  subdivision  of  section  382  would  prevent  the  run- 
ning of  the  Statute  of  Limitations  until  February  1, 
1917,  and  bring  all  the  transactions  complained  of 
within  a  proper  time  for  the  commencement  of  suit 
pursuant  to  law;  but  there  is  no  claim  that  the  defend- 
ants other  than  the  guilty  partner  were  actively  or 
expressly  instruments  in  the  practice  of  any  fraud  in 
reference  to  the  peculations  and  misappropriations 
committed  against  the  plaintiff,  and  it  would  seem, 
therefore,  that  the  provisions  of  section  382,  subdivi- 
sion 5,  supra,  which  provide  that  the  cause  of  action  is 
not  deemed  to  have  accrued  until  the  discovery  of  the 
facts  constituting  the  fraud  has  no  application  to  the 
claim  made  by  the  plaintiffs  in  this  case,  except  in  so 
far  as  it  relates  to  their  claim  against  the  guilty  part- 
ner. The  partnership  entity  comprising  all  the  part- 
ners who  are  owners  of  the  partnership  property  hold- 
ing per  my  et  per  tout,  would  if  participating  in  the 
fraud,  even  to  the  extent  of  receiving  an  aliquot  share 
of  the  misappropriated  funds  without  knowledge  of 
their  fraudulent  source,  remain  subject  to  the  suspen- 
sion of  the  statute  until  discovery  by  the  person 
defrauded  of  the  facts  constituting  the  fraud  to  the 
full  extent  of  the  defalcation.  But  their  liability  as 
partners  in  the  case  of  their  innocence  of  actual 
wrongdoing  when  they  are  charged  with  knowledge 
which  they  can  have  only  constructively  and  not 
actually  and  where  the  firm  fund  is  not  enriched  at  all 
by  the  peculations  ends  with  the  running  of  the  stat- 
ute from  the  time  of  the  actual  wrong.  The  action  is 
concededly  one  in  equity  to  procure  a  judgment  on 
the  ground  of  fraud.  Such  an  action  is  included 
within  this  section  because,  although  the  words 
**  other  than  for  the  sum  of  money  "  are  contained  in 
subdivision  5,  it  includes  all  cases  in  which  equitable 
relief  is  required,  although  as  part  of  the  ultimate 


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142  Owen  v.  Bodinb. 


Supreme  Court,  January,  1921.  [Vol.  114. 

relief  a  money  judgment  is  also  demanded.  Each  item 
of  the  account  of  which  misappropriation  is  charged 
must  be  considered  as  of  its  own  date,  and  in  no  view 
of  either  of  these  limiting  statutes  is  any  item  shown 
to  have  been  sued  upon  within  six  years  of  the  time 
that  it  accrued  against  the  innocent  defendants. 


Judgment  for  defendants. 


Carl  M.  Owen,  as  Successor  Trustee  under  the  Last 
Will  and  Testament  of  Susan  Dyckman,  Deceased, 
Plaintiff,  v.  John  H.  Bodine,  Fannie  E.  Hicks, 
Warren  E.  French,  Jr.,  and  Ethel  G.  H.  French, 
His  Wife,  and  Stephen  E.  Ditchett,  as  Executor  of 
George  W,  Ditchett,  Deceased,  Defendants. 

(Supreme  Court,  New  York  Special  Term,  January,  1921.) 

Foreclosure  —  mortgages  —  default  —  when  deficiency  jndgment 
may  not  be  entered  for  taxes  and  assessments. 

Though  the  defendant  in  an  action  to  foreclose  a  mortgage 
who  made  the  bond  allows  a  default  to  be  taken  against  him, 
no  judgment  for  deficiency  may  be  entered  against  him  for 
taxes  and  assessments  paid  by  plaintiff  after  the  action  was 
commenced. 

Mutual  Life  Ins,  Co,  v.  NeweU,  78  Hun,  293,  distinguished. 

Action  of  foreclosure. 

Frauloff   &   Robinson    (George    J.    Johnstone,    of 
counsel),  for  motion. 

Edward  S.  Clinch,  for  defendant  Fannie  E.  Hicks 
(not  opposing). 

TiERNEY,  J.    This  is  an  action  of  foreclosure.    The 
plaintiff  claims  that  after  the  commencement  of  the 


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Owen  v.  Bodinb.  143 


Misc.]  Supreme  Court,  January,  1921. 

action  he  paid  taxes  and  assessments,  and  he  asks  to 
have  the  amount  added  to  the  amount  of  the  mortgage 
debt  as  set  forth  in  the  complaint.  One  of  the  defend- 
ants made  the  bond,  and  a  deficiency  judgment  is 
demanded  against  him.  He  has  been  served  with  a 
smnmons  and  complaint  and  has  allowed  a  default  to 
be  taken  as  against  him.  His  default  enables  the 
plaintiff  to  take  judgment  against  him  upon  the  claim 
set  forth  in  the  complaint.  If  that  claim  is  to  be 
extended  by  adding  other  items  to  it,  no  default  or 
admission  as  to  these  items  is  to  be  assumed  from  the 
default  as  to  the  original  claim.  And  yet  the  plaintiff 
insists  that  a  deficiency  judgment  might  be  taken 
against  this  defendant  for  these  items  for  which  he 
never  heard  of  a  claim,  on  an  ex  parte  affidavit  of  the 
plaintiff  and  bases  his  claim  upon  the  case  of  Mutu(d 
Life  Ins.  Co.  v.  Newell,  78  Hun,  293.  In  that  case  the 
judgment  was  modified  to  accord  with  a  situation  that 
arose  after  the  entry  of  judgment;  the  parties  were 
all  before  the  court,  and  the  application  was  not 
granted  on  an  ex  parte  affidavit,  but  proof  was  taken 
by  the  court.  At  least  that  appears  from  the  report 
of  the  case.  Certainly  the  courts  that  decided  that 
case  would  not  have  sanctioned  or  approved  the  prac- 
tice asked  for  by  the  plaintiff.  The  motion  for  a 
reargument  is  therefore  granted,  and  ui)on  such 
reargument  the  application  is  again  denied. 


Ordered  accordingly. 


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144  DODD  V.  BOENIG. 


Supreme  Court,  January,  1921.  [Vol.  114. 


Anne    S.    Dodd,    Plaintiff,    v.    Robekt    W.    Bobnig, 

Defendant. 

(Supreme  Court,  Nassau  Special  Term,  January,  1921.) 

Title  ~  action  to  quiet  — tax  deed —  real  property  —  Tax  Law, 
§§  132,  134. 

In  an  action  to  quiet  title  brought  by  the  owner  in  possession 
of  certain  real  property  against  the  purchaser  at  a  tax  sale 
who  never  was  in  possession,  to  set  aside  and  cancel  the  tax 
deed  given  to  defendant  by  the  county  treasurer,  it  appeared 
that  through  a  clerical  error  in  the  tax  office  a  double  assess- 
ment was  levied  against  the  property,  one  running  against  the 
owner,  which  was  paid,  and  one  against  an  unidentified  person. 
Held,  that  the  recording  of  the  tax  deed  without  proof  of  serv- 
ice of  the  notice  required  by  section  134  of  the  Tax  Law,  which 
the  purchaser  at  the  tax  sale  did  not  give,  was  void,  and  that 
plaintiff  was  not  barred  by  section  132  of  the  Tax  Law  from 
asserting  her  right  to  have  the  tax  deed  canceled. 

Action  to  quiet  title. 

Philip  Huntington,  for  plaintiff. 

Edwin  D.  Kenyon,  for  defendant. 

Squiebs,  J.  This  is  an  action  brought  by  the  owner 
in  possession  of  certain  property  situated  in  the 
village  of  Sea  Cliff,  town  of  Oyster  Bay,  county  of 
Nassau,  against  the  purchaser  at  a  tax  sale  to  set 
aside  and  cancel  a  tax  deed  given  by  the  treasurer  of 
Nassau  county  to  the  defendant. 

On  the  9th  day  of  October,  1906,  the  property  in 
question  was  conveyed  to  the  plaintiff  by  the  Salva- 
tion Army.  The  property  covered  by  said  deed,  con- 
sisting of  lots  407,  408,  409,  448,  449,  1687,  house  and 
lots  450  and  451,  was  assessed  for  the  year  1907 


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DODD  V.  BOENIG.  145 


Misc.]  Supreme  Courts  January,  1921. 

against  M.  M.  Dodd  (who  was  presumably  the  hus- 
band of  the  plaintiff),  and  the  tax  levied  upon  such 
assessment  was  paid  on  July  24,  1908.  It  appears 
from  the  tax  records  offered  in  evidence  on  the  trial 
that  lot  451  for  the  year  1907  was  also  assessed  against 
one  Miss  Stanley. 

The  property  covered  by  the  aforesaid  deed  to  the 
plaintiff  was  also  assessed  for  the  year  1910  and  the 
tax  based  on  said  assessment  was  paid.    For  that  year 
also  an  assessment  was  levied  against  lot  451  in  the 
name  of  Miss  Stanley  and  such  tax  does  not  appear 
from  the  records  to  have  been  paid.     For  the  year 
1911  an  assessment  was  levied  against  the  property 
covered  by  the  deed  running  against  M.  M.  Dodd, 
which  tax  was  paid  on  March  9,  1912.    A  similar  tax 
was  levied  against  M.  M.  Dodd  for  the  year  1912 
affecting  said  property,  which  was  paid  on  March  4, 
1913.    Again  lot  451  was  assessed  for  the  year  1913 
running    against    Miss    Stanley.     Subsequently,    as 
shown  by  the  sales  blotter  of  the  town  of  Oyster  Bay, 
offered  in  evidence  on  the  trial,  lot  451  was  sold  for 
unpaid    taxes    assessed    against    Miss    Stanley,    the 
amount  of  the  tax  being  one  dollar  and  eighty-five 
cents,  and  was  purchased  by  the  defendant  for  the 
sum  of  three  dollars  and  forty  cents.     Subsequently 
there  was  delivered  to  the  defendant,  the  purchaser  on 
said  tax  sale,  a  tax  deed  dated  December  20, 1910,  and 
executed  by  the  treasurer  of  Nassau  county,  purport- 
ing to  convey  lot  451,  being  one  of  the  lots  covered 
by  the  deed  to  the  plaintiff  heretofore  referred  to.    At 
a  later  date  lot  451  was  sold  for  the  taxes  for  the  years 
1910,  1911,  1912  and  was  purchased  at  the  sale  by  the 
defendant  herein  on  the  24th  day  of  December,  1915, 
for  the  sum  of  ten  dollars  and  eighty-eight  cents.    The 
defendant  recorded  his  first  tax  deed,  and  it  is  appar- 
ent that  this  is  the  deed  upon  which  he  relies  to  defeat 
10 


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146  DODD  V.  BOBNIG. 


Supreme  Court,  January,  1921.  [Vol.  114. 

the  plaintiff's  action.  After  the  purchase  of  the  prop- 
erty by  the  plaintiff  in  1906,  she  caused  to  be  erected 
upon  lots  450  and  451  during  the  winter  1906  and  1907, 
a  dwelling  house,  which  ever  since  has  been  and  stiU 
is  on  the  lots  in  question.  In  the  month  of  December, 
1910,  the  house  and  lots  in  question  were  rented  by 
the  plaintiff  to  one  Franklin  B.  Myrick,  who  entered 
into  occupancy  on  the  29th  day  of  April,  1910,  and 
remained  in  occupancy  as  tenant  continuously  for  a 
period  of  six  years.  It  is  clear  from  the  evidence  that 
through  a  clerical  error  in  the  tax  office  of  Nassau 
county  a  duplicate  double  assessment  was  levied 
against  lot  451,  one  running  against  the  owner  and 
one  running  against  Miss  Stanley,  who  is  not  identi- 
fied by  the  evidence  adduced  at  the  trial. 

In  spite  of  the  able,  exhaustive  brief  presented  by 
the  attorney  for  the  defendant,  it  is  unthinkable  that 
an  owner  of  property  should  be  ousted  from  his 
ownership  through  an  error  made  by  a  clerk  in  the 
tax  office.  The  assessment  attempted  to  be  levied 
against  the  property  in  the  name  of  Miss  Stanley  was 
absolutely  void,  and,  therefore,  the  lax  sale  and  all 
proceedings  prior  thereto  and  subsequently,  were  void 
ab  initio.  The  tax  which  was  properly  levied  against 
the  owner  was  paid.  The  case  of  Wallace  v.  Inter- 
national Paper  Co.,  53  App.  Div.  41,  holds  that 
section  132  of  the  Tax  Law  refers  to  authorized  sales 
and  touching  deeds  given  in  pursuance  thereof  (at 
p.  43) :  **  Such  authorized  deeds  are  made  conclusive 
evidence  of  title  after  the  lapse  of  a  given  time;  but 
no  unauthorized  deed  based  upon  an  unauthorized 
sale,  a  sale  where  there  were  no  unpaid  taxes  to  war- 
rant it,  was  intended  to  be  covered  by  this  section  of 
the  Tax  Law.  ♦  •  •  Section  132  reads,  ^  every  such 
conveyance,'  etc.  That  is,  conveyance  on  a  sale  for 
unpaid  taxes.*' 


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Doi»D  V.  BOENIG.  147 


Misc.]  Supreme  Court,  January,  1921. 

**A  sale  for  two  taxes  when  one  has,  in  fact,  been 
paid  invalidates  the  sale/*  Loomis  v.  Semper,  38 
Misc.  Eep.  570. 

In  Wallace  v.  McEchron,  176  N.  Y.  424,  the  Conrt 
of  Appeals  construed  and  interpreted  section  132  of 
the  Tax  Law.  This  was  an  action  in  partition  affect- 
ing certain  unimproved  lands  in  Hamilton  county. 
One  of  the  defendants  claimed  an  interest  in  the  prop- 
erty in  question  by  virtue  of  a  tax  deed  from  the 
comptroller  of  the  state  of  New  York  bearing  date 
December  29,  1886,  and  subsequently  recorded.  The 
trial  court  found  among  other  facts  that  in  November, 
1886,  the  owner  applied  to  the  comptroller  of  the  state 
for  a  statement  of  the  unpaid  taxes  upon  the  property, 
and  the  comptroller  rendered  such  statement  to  the 
owner  who  paid  the  taxes.  Such  statement  did  not 
contain  a  statement  of  a  road  tax  for  which  tax  the 
property  was  subsequently  sold  by  the  comptroller. 
The  holder  of  the  tax  title,  as  here,  contended  that  the 
failure  of  the  plaintiffs  to  bring  any  action  within  the 
period  of  time  limited  by  section  132  of  the  Tax  Law 
barred  and  divested  all  the  plaintiffs*  rights.  At  page 
427  the  court  said: 

**  It  has  been  decided  by  this  court  that  where  the 
default  of  the  taxpayer  is  caused  by  the  failure  of  the 
public  officer  or  his  clerks  to  render  a  proper  state- 
ment of  the  unpaid  taxes,  a  sale  made  for  unpaid  taxes 
omitted  from  the  statement  cannot  divest  the  owner 
of  his  title.    *    *    * 

**The  sale  of  the  lands  to  Curtis  and  Baker  was, 
therefore,  void  as  against  the  plaintiffs,  and  we  are 
thus  brought  to  a  consideration  of  the  effect  of  the 
record  of  the  comptroller's  deed  under  section  132  of 
the  Tax  Law.     •     •     • 

**  Such  statutes  have  been  viewed  by  this  court  both 
as  curative  acts  and  as  statutes  of  limitations.    It  is 


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148  DODD  V.  BOENIG. 


Supreme  Court,  January,  1921.  [Vol.  114. 

to  be  observed,  however,  that  none  of  them  has  been 
enacted  in  the  ordinary  form  either  of  a  curative  act 
or  of  a  statute  of  limitations.  In  terms  they  provide 
that  after  a  certain  lapse  of  time  and  in  certain  con- 
tingencies a  comptroller's  deed  shall  be  conclusive  evi- 
dence of  certain  facts.  It,  therefore,  becomes  neces- 
sary when  any  case  involving  the  construction  and 
effect  of  one  of  these  statutes  is  presented  to  closely 
scrutinize  and  carefully  analyze  the  statute  to  see 
whether  as  to  such  case  the  statute  applies,  and  if 
applicable,  wliether  its  operation  is  that  of  a  curative 
act  or  of  a  statute  of  limitations.'* 

At  page  429:  **  Where  the  proceedings  are  so  fatally 
defective  that  no  title  passes,  it  cannot  by  a  curative 
act  transfer  the  title  of  one  person  to  another." 

A  fair  interpretation  of  the  law  as  laid  down  in  this 
case  would  apply  equally  if  the  act  is  applied  as  a 
statute  of  limitation.  The  instant  case  is  distinguish- 
able from  the  case  of  Doud  v.  Huntington  Hebrew 
Congregation,  178  App.  Div.  748.  In  that  case  the 
purchaser  at  the  tax  sale  was  in  possession.  In  the 
instant  case  the  purchaser  at  the  tax  sale  was  never 
in  possession.  Mr.  Justice  Blackmar,  writing  the 
opinion,  said  at  page  749 : 

**  No  legislative  fiat  can  validate  the  sale  of  the 
land  of  Emma  Baker  to  satisfy  the  debt  of  Eunice 
Baker.  {People  ex  rel.  Boenig  v.  Hegeman,  220  N.  Y. 
118.) 

'*But  although  no  act  of  the  Legislature  can  val- 
idate the  sale,  it  is  competent  for  the  Legislature  to 
pass  a  statute  limiting  the  time  within  which  plaintiff 
may  maintain  an  action  attacking  such  sale.  *  Such 
a  statute  will  bar  any  right,  however  high  the  source 
from  which  it  may  be  deduced,  provided  that  a  reason- 
able time  is  given  a  party  to  enforce  his  right.* 
{Meigs  v.  Roberts,  162  N.  Y.  371,  378.     See,  also. 


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DODD  V.  BOBNIG,  149 


Misc.]  Supreme  Court,  January,  1921. 

Peterson  v.  Martina,  210  id.  412;  Bryan  v.  McGurk, 
200  id.  332;  People  v.  Ladew,  189  id.  355.) '' 

A  tax  sale  contemplates  a  valid  and  not  a  void  assess- 
ment on  which  the  tax  in  question  is  based.  The  case 
cited  was  a  case  of  a  duplication  of  the  assessment 
and  tax. 

Bryan  v.  McOurk,  200  N.  Y.  332,  is  distinguishable 
from  the  instant  case  as  that  was  a  case  of  unoccupied, 
wild  land,  whereas  the  case  under  consideration  is 
occupied  land.  Quoting  from  the  opinion  of  Justice 
Blackmar,  supra,  that:  **  Such  a  statute  will  bar  any 
right  *  *  *  provide.d  that  a  reasonable  time  is 
given  a  party  to  enforce  his  right," — this  is  exactly 
what  was  not  done  in  the  case  now  under  considera- 
tion.  Section  134  of  the  Tax  Law  provides  for  a  notice 
to  occupants  and  prescribes  definitely  the  manner  of 
service  of  the  notice,  and  the  concluding  sentence 
thereof  provides,  **  No  conveyance  made  in  com- 
pliance of  this  section  shall  be  recorded  until  the 
expiration  of  the  time  mentioned  in  such  notice,  and 
the  evidence  of  the  service  of  such  notice  shall  be 
recorded  with  such  conveyance.'* 

It  is  clear  from  the  reading  of  this  section  with  sec- 
tion 132  that  the  mere  recording  of  the  deed  where  the 
property  is  occupied  is  not  notice  either  actual  or 
constructive  to  the  occupant.  The  court  finds  as  a 
matter  of  fact  in  the  instant  case  that  the  property  in 
question  was  occupied  continuously  within  the  mean- 
ing of  that  term,  and  that  no  notice  such  as  is  required 
by  section  134  was  served  upon  the  occupant.  There- 
fore, section  132  of  the  Tax  Law,  which  the  defendant 
relies  upon  as  a  statute  of  limitations  in  this  action, 
does  not  operate  as  a  statute  of  limitations  in  view  of 
the  fact  that  the  occupant  never  had  the  notice  pro- 
vided for  in  section  134,  and,  therefore,  the  plaintiff 
is  not  barred  from  asserting  her  right  in  this  action 


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150  DODD   V.   BOENIG. 


Supreme  Court,  January,  1921.  [Vol.  114. 

to  cancel  the  tax  deed.  The  recording  of  the  tax  deed 
without  the  proof  of  the  service  of  the  notice  pro- 
vided for  in  section  134  of  the  Tax  Law  is  void.  See 
Matter  of  Hunter,  189  App.  Div.  805,  in  which  Mr. 
Justice  Jaycox  says:  **  Owners  of  occupied  lands 
cannot  be  deprived  of  their  title  except  by  strict  com- 
pliance with  this  section.  Evidence  of  compliance 
therefore  is  expressly  required  to  be  recorded  with 
the  conveyance  and  without  it  the  record  is  absolutely 
void.''    Ostrander  v.  Reis,  206  N.  Y,  448,  454,  455. 

In  Clason  v.  Baldwin,  152  N.  Y.  210,  the  defendant 
asserted  a  title  based  upon  a.  lease  by  the  comptroller 
of  the  city  of  New  York  upon  a  sale  for  unpaid  taxes. 
The  court  at  page  210  said:  **  The  proceedings  were 
purely  statutory,  and  the  title  of  the  owner  could  not 
be  divested  without  a  strict  compliance  with  all  the 
provisions  of  the  statute.  In  such  cases  every  requi- 
site of  the  statute,  having  the  semblance  of  benefit 
to  the  owner,  must  be  substantially,  if  not  strictly, 
complied  with." 

In  the  instant  case  the  purchaser  did  not  strictly 
comply  with  the  provisions  of  the  statute,  in  that  he 
failed  to  serve  the  notice  required  by  section  134  of 
the  Tax  Law,  and  therefore  the  title  which  he  asserts 
must  fail. 

Under  the  General  Recording  Act  it  has  been  held 
that  the  recording  of  a  deed  is  not  notice  to  the  owner 
in  possession  who  does  not  claim  title  through  any 
party  to  the  deed.  See  Seely  v.  Seely,  164  App.  Div. 
652:  **A  recorded  deed  under  the  Recording  Act  is 
constructive  notice  to  subsequent  purchasers  and 
incumbrancers.  It  is  no  notice  to  the  owner  in  pos- 
session who  does  not  claim  through  any  party  to  the 
deed." 

**  The  recording  acts,  however,  do  not  declare  what 
effect  shall  be  given  to  the  recording  of  conveyances, 


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Matter  of  McOwbn.  151 

Misc.]      Surrogate's  Court,  Bronx  County,  January^  1921. 

upon  the  point  of  notice.  They  declare  that  unless 
recorded,  they  shall  be  void  as  against  subsequent  pur- 
chasers in  good  faith,  and  for  value,  whose  convey- 
ances shall  be  first  recorded.  But  the  courts,  by  con- 
struction, make  the  record  of  a  conveyance,  notice  to 
the  subsequent  purchasers ;  but  this  doctrine  is  subject 
to  the  limitation,  that  it  is  notice  only,  to  those  claim- 
ing under  the  same  grantor,  or  through  one  who  Is 
the  common  source  of  title. '^  Tarhell  v.  West,  86 
N.  Y.  288. 

The  defendant  cannot,  therefore,  rely  upon  the  Gen- 
eral Recording  Act  in  asserting  his  title  under  the  tax 
deed. 

For  the  reasons  stated,  judgment  is  granted  plain- 
tiff, with  costs. 

Judgment  accordingly. 


Matter  of  the  Administration  on  the  Estate  of  Elijjn 
McOwBN,  Deceased. 

(Surrogate's  Court,  Bronx  County,  January,  1921.)   * 

Executors  and  administrators  —  when  application  for  letters  of 
administration  granted  —  statutes  —  preference  —  Oode  Oiv. 
Pro.  §§  2564,  2565,  2588(2). 

A  surrogate  has  no  discretion  to  exclude  a  person  declared 
by  statute  to  be  entitled  to  priority  of  appointment  as  admin- 
istrator, except  in  cases  where  his  disqualification  is  declared 
by  the  statute  itself. 

After  the  death  of  a  wife  intestate,  her  surviving  husband 
died  leaving  a  will  by  which  he  gave  one-third  of  his  estate  to 
a  son,  one-third  to  a  daughter,  who  favored  the  appointment 
of  the  son  as  administrator  of  the  mother's  estate,  one-sixth 
to  a  daughter  who  favored  the  appointment  of  another  daugh- 
ter who  was  given  one-sixth  of  the  estate  for  life,  with 
remainder  to  the  son.     The  father's  will  is  being  contested 


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152  Matter  of  McOwen. 

Surrogate's  Court,  Bronx  County,  January,  1921.     [Vo].  114. 

by  the  daughter  who  petitions  for  letters  of  administration,  and 
the  daughter  who  favors  such  appointment.  Held,  that  facts 
alleged  against  the  son,  who  opposed  the  appointment  of  his 
sister  as  administratrix,  not  being  such  as  are  set  forth  in  either 
section  2564  or  2665  of  the  Code  of  Civil  Procedure  as  consti- 
tuting disqualification  to  receive  letters  of  administration  or  as 
conditions  warranting  a  refusal  to  grant  them  to  him,  his 
application  therefor  will  be  granted  and  the  application  of  the 
daughter  denied,  as,  though  both  had  an  equal  right  of  admin- 
istration, under  section  2588(2)  men  must  be  preferred  to 
women. 

Pboceedings  for  appointment  of  an  administrator. 

Francis  X.  Kelly,  for  petitioner. 

Edward  J.  Flynn,  Egan  &  O^Reilly,  for  respond- 
ents. 

ScHULZ,  S.  On  an  application  for  letters  of  admin- 
istration upon  the  estate  of  the  decedent  made  by  one 
of  her  daughters,  a  son  opposes  the  appointment  of 
the  petitioner  and  asks  that  if  administration  is 
granted,  letters  issue  to  him.  There  are  two  other 
daughters  of  the  deceased,  one  of  whom  favors  the 
appointment  of  the  son,  and  the  other  that  of  the  peti- 
tioner or  a  trust  company.  Since  the  matter  was  sub- 
mitted the  son  also  has  applied  for  his  appointment 
as  administrator  and  as  the  same  facts  are  involved 
on  both  applications,  I  shall  consider  them  together. 

The  right  to  the  appointment  of  the  administrator 
and  the  order  of  priority  among  the  next  of  kin,  is 
regulated  by  statute.  Code  Civ.  Pro.  §  2588 ;  Matter 
of  D^Agostino,  88  Misc.  Rep.  371,  375.  There  being  no 
surviving  husband,  the  children  of  the  decedent  are 
next  in  order.  Code  Civ.  Pro.  §  2588,  subd.  2.  The 
section  cited,  however,  also  provides  that:  *'  If  several 


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Matter  of  McOwen.  153 

Misc.]      Surrogate's  Court,  Bronx  County,  January,  1921. 

■ 

persons  have  an  equal  right  to  administration, '^  men 
must  be  preferred  to  women  so  that  it  would  follow 
that  the  son  is  entitled  to  letters  in  preference  to  the 
petitioning  daughter  {Matter  of  Curser,  89  N.  Y. 
401;  Matter  of  Moron,  5  Misc.  Bep.  176),  unless  the 
court  upon  the  facts  alleged  by  the  petitioner  has 
power  to  deprive  him  thereof  and  direct  their  issuance 
to  another. 

It  appears  that  the  husband  of  the  decedent  died 
after  his  wife  and  left  a  will  by  which  he  gave  one- 
third  of  his  estate  to  a  son,  one-third  of  his  estate  to 
the  daughter  who  favors  the  son's  appointment,  one- 
sixth  to  the  daughter  who  favors  the  petitioner's 
appointment,  and  one-sixth  to  the  petitioner  for  life 
with  remainder  to  the  son.  It  is  claimed  by  the  son 
that  it  was  understood  by  the  family  that  the  decedent 
had  no  personal  or  real  property,  and  for  that  reason 
no  application  was  made  for  administration  upon  her 
estate. 

The  petitioner  urges  that  it  is  purposed  to  bring  an 
action  to  set  aside  an  assignment  of  mortgage  for 
$7,000,  presumed  to  have  been  made  by  the  decedent 
to  her  husband  on  the  ground  of  fraud;  that  there  is 
an  unrecorded  mortgage  or  assignment  of  mortgage 
for  the  sum  of  $6,500  in  the  name  of  the  decedent 
which  the  son  if  appointed  would  not  claim  as  the 
property  of  the  estate;  that  the  petitioner  has  brought 
a  suit  for  the  partition  of  real  estate  claimed  to  be 
owned  by  the  decedent  to  which  all  of  the  children  are 
parties  and  in  which  the  son  and  the  daughter  who 
favors  his  appointment  have  appeared  and  interposed 
answers  denying  all  of  the  material  allegations  of  the 
complaint;  that  it  is  to  the  personal  interest  of  the 
son  and  of  the  daughter  referred  to,  to  increase  the 
estate  of  their  father  and  to  diminish  that  of  the 
mother  and  that  such  interest  of  the  son  would  clash 


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154  Matter  of  McOwen. 

Surrogate's  Court,  Bronx  County,  January,  1921.     [Vol.  114. 

with  his  interests  as  administrator  which  would  be  to 
increase  the  estate  of  the  mother.  It  is  apparent  that 
the  son  would  be  personally  benefited  by  an  increase 
in  the  father's  estate,  assuming  that  the  paper  pro- 
pounded as  the  father's  will  is  admitted  to  probate. 

The  son,  on  the  other  hand,  contends  that  if  the 
daughter  is  appointed,  she  will,  by  a  multiplicity  of 
suits  and  entirely  unnecessary  litigation,  cause  great 
expense  and  injury  to  the  estate. 

The  father's  will  is  now  being  contested  by  the 
petitioner  and  the  daughter  who  favors  her  appoint- 
ment, and  will  be  tried  in  February  next.  If  it  is  not 
admitted  to  probate,  many  of  the  questions  which  are 
of  importance  now  will  no  longer  be  necessary  of 
solution.  I  cannot,  however,  take  the  responsibility 
of  refusing  letters  of  administration  until  that  time, 
because  matters  may  arise  which  would  make  imme- 
diate action  by  an  administrator  advisable. 

Under  the  circumstances,  I  would  deem  it  for  the 
best  interests  of  all  concerned  that  neither  the  peti- 
tioner nor  the  son  be  appointed,  and  that  letters  issue 
to  a  trust  company  not  connected  in  any  way  with 
either  of  them  and  which  would  have  no  interest  in 
the  controversy  between  them,  except  to  see  that  the 
estate  of  the  decedent  was  properly  administered. 
Efforts  to  obtain  the  consent  of  the  parties  to  such 
a  disposition  of  the  matter  having  been  unsuccessful, 
it  remains  to  be  considered  whether  upon  the  facts 
stated,  I  have  jurisdiction  to  decree  it. 

Section  2588  of  the  Code  provides  that:  ''Adminis- 
tration in  case  of  intestacy  must  be  granted  to  the 
persons  entitled  to  take  or  share  in  the  personal  prop- 
erty, who  are  competent  and  will  accept  the  same," 
etc.  In  section  2564  of  the  Code  are  enumerated  the 
persons  incompetent  to  receive  letters  of  adminis- 
tration, etc.,  and  in  section  2565  are  set  forth  the  con- 


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Mattbb  of  Shui^nbubg.  155 

Misc.]     Surrogate's  Court,  Montgomery  County,  January,  1921. 

ditions  under  which  the  surrogate  may  refuse  letters. 
The  facts  alleged  against  the  son  are  not  such  as  are 
set  forth  in  either  of  these  sections  as  constituting 
disqualification  to  receive  letters,  or  as  conditions  war- 
ranting their  refusal.  If,  therefore,  I  refuse  to  issue 
letters  to  him,  it  must  be  upon  the  assumption  that  i 
have  some  discretion  in  the  matter. 

It  has  been  consistently  held,  however,  that  a  surro- 
gate has  no  discretion  to  exclude  a  person  declared 
by  the  statute  to  be  entitled  to  a  priority,  except  in 
cases  where  his  disqualification  is  declared  by  the 
statute  itself  {Coope  v.  Lowerre,  1  Barb.  Ch,  45; 
O'Brien  v.  Neuhert,  3  Dem.  156;  Matter  of  Wilson,  92 
Hun,  318;  Matter  of  Campbell,  123  App.  Div.  212; 
affd.,  192  N.  Y.  312),  and  hence  I  am  constrained  to 
grant  the  application  of  the  son  and  deny  the  appli- 
cation of  the  daughter.  Settle  decision  and  decree 
on  notice  at  which  time  I  will  hear  counsel  upon  the 
question  of  the  amount  of  the  bond  wnich  should  be 
required. 

Decreed  accordingly. 


Matter    of    the    Estate    of    John    C.    Shulenburo, 

Deceased. 

(Surrogate's  Court,  Montgomery  County,  January,  1921.) 

Ezemptions  —  when  widow  not  estopped  from  claiming  her  statu- 
tory right  —  husband  and  wife  — dower — Oode  Oiv.  Pro. 
§  2670. 

Where  in  1889,  about  a  year  after  their  marriage,  the  wife 
of  decedent,  who  died  in  1920,  executed  a  release  of  her  dower 
and  other  rights  which  she  had  or  might  have  in  and  to  his 
property,  and  it  appears  that  no  children  were  bom  of  the 
marriage;  that  since  the  execution  of  the  contract  the  parties 


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156  Matter  of  Shulenburg. 

Surrogate's  Court,  Montgomery  County,  January,  1921.     [Vol.  114. 

had  lived  separate  and  apart,  and  that  the  wife  had  never 
demanded  or  received  any  support  or  maintenance  from  him, 
it  must  be  held,  under  section  2670  of  the  Code  of  Civil  Pro- 
cedure, that  he  died  having  a  family,  and  that  the  wife  was 
not  estopped  firom  claiming  her  statutory  right  to  have  certain 
property  set  apart  to  her  as  widow. 

Proceeding  under  section  2671,  Code  of  Civil  Pro- 
cedure, to  compel  executor  to  set  apart  property  for 
the  petitioner. 

Irving  Moyer  (Charles  D.  Thomas,  of  counsel),  for 
petitioner. 

George  C.  Butler,  for  George  Shulenburg,  executor 
of  the  last  will  and  testament  of  John  C.  Shulenburg, 
deceased. 

SponabliE,  S.  This  is  a  proceeding  instituted  by  the 
petitioner  under  section  2671  of  the  Code  of  Civil 
Procedure  to  compel  the  executor  to  set  apart  prop- 
erty for  the  petitioner  as  provided  by  section  2670  of 
the  Code  of  Civil  Procedure. 

The  petitioner  was  the  wife  and  is  the  surviving 
widow  of  John  C.  Shulenburg  to  whom  she  was  mar- 
ried at  the  city  of  Buffalo,  N.  Y.,  on  the  21st  day  of 
October,  1888.  John  C.  Shulenburg  died  at  the  town 
of  St.  Johnsville,  Montgomery  county,  N.  Y.,  on  the 
17th  day  of  August,  1920,  being  at  the  time  of  his 
death  a  resident  of  said  Montgomery  county  and  leav- 
ing a  last  will  and  testament  in  which  George 
Shulenburg  was  named  as  sole  executor,  which  will 
was  admitted  to  probate  by  this  court  on  the  20th  day 
of  September,  1920,  and  letters  testamentary  thereon 
were  issued  to  said  George  Shulenburg  who  qualified 
as  such  executor  and  entered  upon  the  discharge  of 
the  duties  of  his  ofl5ce.    An  appraisal  of  the  property 


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Matter  of  Shulbnburg.  157 

Misc.]     Surrogate's  .Court,  Montgomery  County,  January,  1921. 

of  said  deceased  was  made  by  appraisers  appointed 
by  this  court  and  an  inventory  was  thereafter  filed, 
which  inventory  shows  that  deceased  left  personal 
property  of  the  kind  and  character  specified  in  section 
2670  of  the  Code  of  Civil  Procedure  and  further  shows 
that  said  executor  and  the  said  appraisers  failed  to 
set  apart  in  said  inventory  any  property  for  the  peti- 
tioner herein. 

After  the  marriage  and  on  November  25,  1889,  the 
petitioner  executed  the  following  instrument: 

'*  Fulton  County,  ss.: 

''  Know  all  men  by  these  presents  that  I,  Anna 
ShuUenburg  wife  of  John  C.  ShuUenburg  both  of  the 
Town  of  Stratford,  County  aforesaid,  for  and  in  con- 
sideration of  the  sum  $29.50  to  me  paid  by  my  hus- 
band John  C.  ShuUenburg  have  granted  remised  and 
released  and  forever  quit-claim  and  by  these  presents 
do  grant,  remise  and  release  and  forever  quit-claim 
unto  the  said  John  C.  ShuUenburg  his  hers  &  assigns 
forever  all  the  dower  and  thirds  right  and  title  of 
dower  and  thirds  and  all  the  other  rights,  title  inter- 
est property  claim  and  demand  whatsoever  in  law 
and  in  equity  of  me  the  said  Anna  ShuUenburg  of  in 
and  to  all  the  real  and  personal  estate  and  property 
now  in  possession  of  the  said  John  C.  ShuUenburg 
end  that  which  he  may  hereafter  acquire  so  that 
neither  I  the  said  Anna  ShuUenburg  my  heirs,  execu- 
tors administrators  nor  any  other  person  or  persons 
for  me  them  or  any  of  them  shall  have  claim  chal- 
lenge or  demand  or  pretend  to  have  claim  challenge 
or  demand  any  dower  or  thirds  or  any  other  right 
title  claim  or  demand  or  in  or  to  the  said  premises 
and  property  but  thereof  and  therefrom  shall  be 
utterly  debarred  and  excluded  forever,  by  these 
presents. 


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158  Matter  of  Shulenburo. 

Surrogate's  Court,  Montgomery  County,  January,  1921.     [Vol.  114. 

'*  In  witness  whereof  the  said  Anna  Shnllenburg 
shall  hereunder  set  her  hand  and  seal  this  25th  day  of 
November,  1889. 

^*  Signed,  sealed  and  delivered  in  presence  of 
Charles  J.  Austin.        John  C.  Shullenburg, 

**Anna  Shulinburg     [l.  s.] 
**  State  of  New  York,! 
**  County   of  Fulton,  J  * 

**  John  C.  Shulenburg  being  duly  sworn  deposes 
and  says  that  he  is  one  of  the  subscribing  witnesses 
to  the  deed  or  conveyance  hereto  annexed.  Tlmt 
deponent  was  present  at  the  time  of  the  execution  of 
the  same  and  saw  Anna  Shulenburg  sign  her  name 

*^^^®*^-  *'  John  C.  Shulenburg. 

**  Subscribed  and  sworn  to  before  me  this  14  day  of 
Jan.  1897. 

''  Frank  E.  Gould,  Notary  Public. 

**  Eecorded,  January  14th,  1897,  at  4  h  p.  m. 

C.  H.  Butler,  Clerk.'' 


(( 


It  appears  that  there  were  no  children  bom  of  the 
marriage  of  petitioner  and  testator  and  that  peti- 
tioner and  testator  have  not  lived  or  cohabited  as 
husband  and  wife  but  have  lived  separate  and  apart 
and  that  petitioner  has  never  demanded  or  received 
from  said  testator  any  support  or  maintenance  since 
November  25,  1889,  the  date  of  the  execution  of  the 
said  instrument. 

.  It  is  contended  on  the  part  of  the  executor  that  the 
petitioner  is  not  entitled  to  have  set  apart  for  her 
as  the  widow  of  testator  any  of  the  property  of  which 
testator  died  possessed,  as  provided  by  section  2670 
of  the  Code  of  Civil  Procedure  for  the  reason  that  by 
petitioner's  signing  and  delivering  said  instrument, 
leaving  decedent's  bed  and  board  and  liviner  separate 


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Matter  of  Shulenburg.  159 

Misc.]     Surrogate's  Court,  Montgomery  County,  January,  1921. 

and  apart  from  him  for  thirty-one  years  and  making 
no  claim  whatever  against  him  for  her  support  and 
maintenance,  testator  did  not  die  leaving  a  family 
within  the  meaning  of  section  2670  of  the  Code  and 
that  petitioner  is  estopped  from  recovering  any  por- 
tion of  testator's  personal  property  and  have  the  same 
set  apart  to  her  under  the  provisions  of  said  section. 

In  accordance  with  the  decisions  in  this  state  in  con- 
struing the  meaning  of  section  2670  of  the  Code  based 
upon  similar  facts  as  those  which  confront  me  in  this 
case,  John  C.  Shulenburg  died  having  a  family.  Mat- 
ter of  Shedd,  60  Hun,  367 ;  Oberndorf  v.  Farmers  Loan 
<Sk  Trust  Co.,  71  Misc.  Rep,  64. 

The  instrument  executed  by  the  petitioner  Novem- 
ber 25,  1889,  to  her  husband,  the  testator,  was  an 
attempt  on  her  part  to  release  unto  the  testator,  his 
heirs  and  assigns,  all  her  dower  and  other  rights 
which  she  had  or  might  have  in  and  to  testator's  prop- 
erty, in  other  words,  it  was  a  contract  between  hus- 
band and  wife.  Is  it  a  good  and  valid  contract  and 
one  which  might  be  enforced  by  either  party  to  itt 
At  common  law  no  contract  made  between  husband 
and  wife  was  enforceable.  Hendricks  v.  Isaacs,  117 
N.  T.  411. 

Only  so  far  as  the  inability  of  husband  and  wife 
to  contract  at  common  law  has  been  abrogated  by 
statute  can  they  contract  in  thia  state,  therefore,  the 
legal  effect  of  this  instrument  must  be  determined 
under  and  by  the  provisions  of  chapter  381  of  the 
Laws  of  1884,  which  provide : 

*'  Section  1.  A  married  woman  may  contract  to  the 
same  extent,  with  like  effect  and  in  the  same  form  as 
if  unmarried,  and  she  and  her  separate  estate  shall 
be  liable  thereon,  whether  such  contract  relates  to  her 
separate  business  or  estate  or  otherwise,  and  in  no 
case  shall  a  charge  upon  her  separate  estate  be 
necessary. 


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160  Matter  of  Shulenburg. 

Surrogate's  Court,  Montgomery  County,  January,  1921.     [Vol.  114. 

**  §  2.  This  act  shall  not  aflfect  nor  apply  to  any 
contract  that  shall  be  made  between  husband  and 
wife/^ 

The  purpose  of  this  statute  was  to  secure  to  mar- 
ried women,  free  from  control  of  her  husband,  the 
earnings  and  profits  of  her  own  business  and  her  own 
labor  and  services  carried  on  and  performed  on  her 
own  and  separate  account  which  at  common  law  would 
have  belonged  to  her  husband.  Suau  v.  Caffe,  122 
N.  Y.  30&-320. 

This  act  of  the  legislature  gave  to  contracts 
between  husband  and  wife  no  force  or  effect  other 
than  they  had  at  common  law  and  as  the  contract  is 
void  and  of  no  effect  under  the  law  as  it  existed  at 
the  time  the  petitioner  could  not  and  did  not  release 
to  her  husband,  the  testator,  or  to  his  heirs  or  assigns, 
any  of  the  claims  or  rights  to  his  property  that  she 
has  under  section  2670  of  the  Code  and  to  the  exempt 
articles  which  she  seeks  by  this  proceeding  to  have 
set  aside  to  her.  Wightman  v.  SMiefer,  18  N.  Y. 
Supp.  551 ;  Dworsky  v.  Amdtstein,  29  App.  Div.  274 ; 
Saratoga  County  Bank  v.  Pruyn,  90  N.  Y.  250;  White 
V.  Wager,  25  id,  328;  Graham  v.  Van  Wyck,  14  Barb. 
531 ;  Cram  v.  Cavana,  36  id.  410 ;  Townsend  v.  Town- 
send,  2  Sandf.  711;  Lawrence  v.  Lawrence,  32  Misc. 
Rep.  503. 

The  facts  in  this  case  are  rather  unusual,  both 
parties,  no  doubt,  having  entered  into  this  contract 
in  good  faith  and  believing  at  the  time  that  the  same 
was  valid  and  although  petitioner  and  testator  have 
lived  separate  and  apart  for  a  period  of  approxi- 
mately thirty-one  years  yet  I  must  conclude  and 
decide  that  the  petitioner  is  not  estopped  from  claim- 
ing her  rights  under  the  statute  as  widow  of  the 
deceased. 

Decreed  accordingly. 


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Matter  of  (Jaxda.  161 

Misc.]     Surrogate's   Court,   New  York  County,  January,  1921. 

Matter  of  the  Estate  of  Louisa  S.  Canda,  Deceased. 

(Surrogate's  Court,  New  York  County,  January^  1921.) 

Transfer  tax  — what  subject  to  —  domicile  —  wills  —  statutes  — 
•     power  of  appointment  over  personal  property  without  state  — 
Tax  Law,  §§  220(6),  221(b),  230,  241. 

There  is  no  sound  reason  why  estates  transmitted  by  means 
of  powers  of  appointment  created  by  will  should  not  be  gov- 
erned by  the  same  rules  which  control  the  devolution  of  estates 
by  other  methods.     (P.  166.) 

The  right  to  take  property  by  devise  or  descent  is  ;not  a 
natural  right  and  the  sovereign  power  of  the  legislature  which 
confers  this  privil^e  may  impose  conditions  thereon.    (P.  163.) 

The  state  of  the  domicile  of  a  decedent  fixes  the  situs  of  his 
personal  property  for  the  purposes  of  taxation,  although  such 
property  is  actually  without  that  state.     (P.  164.) 

A  transfer  of  trust  property  effected  by  the  exercise  by 
decedent,  who  died  a  resident  of  this  state,  of  powers  of 
appointment  created  by  the  will  of  her  father  and  grandf ather, 
who  were  residents  of  a  sister  state  in  which  the  trust  property 
is  located,  and  where  her  will  was  probated,  is  subject  to  a 
transfer  tax  under  section  220(6)  of  the  Tax  Law.  (Pp.  162, 
163.) 

Where^  however,  it  appears  that  decedent  by  her  will  exer- 
cised the  powers  of  appointment  in  favor  of  her  trustees,  with 
life  estates  to  her  children,  and  that  the  transfer  to  them  is 
part  of  what  they  would  have  received  under  the  wills  of  their 
ancestors  if  the  powers  had  not  been  exercised,  and  said  chil- 
dren elect  to  take  under  said  wills,  their  life  estates  are  not 
subject  to  a  transfer  tax.     (P.  164.) 

The  will  of  decedent  herein  provided  that  in  default  of  the 
exercise  of  new  powers  of  appointment  given  thereby  the 
remainder  should  vest  in  the  issue  of  her  children  or  in  default 
of  issue  in  their  next  of  kin  under  the  law  of  the  state  in  which 
the  trust  property  was  located.  Her  executors  appealed  from 
an  order  assessing  the  tax,  which  included  as  taxable  the 
transfers  effected  by  the  exercise  of  the  powers  of  appointment, 
on  the  ground  that  if  such  transfers  were  taxable,  the 
remainders  should  be  suspended  from  taxation  until  the  deter- 

11 


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162  Matter  of  Canda. 

Surrogate's  Court,  New  York  County,  January,  1921.     [Vol.  114. 

mination  of  the  question  whether  the  donees  of  the  new  powen 
shnll  exercise  them.  Held,  that  section  230  of  the  Tax  Law,  as 
amended  in  1911,  and  section  241  of  said  statute,  require  that 
the  tax  upon  the  remainders  shall  be  presently  imposed;  if  the 
new  powers  are  exercised  by  the  children  of  decedent,  no  tax 
will  be  due  from  her  estate,  and  a  refund  by  the  state  may  be 
compelled;  if,  however,  the  appointment  is  not  made  by  their 
wills,  the  state  will  be  protected.     (Pp.  165,  166.) 

Appeal  of  the  executors  against  a  tax  under  section  221(b) 
of  the  Tax  Law,  on  securities  in  the  trust  fund  in  the  sister 
state,  sustained,  but  their  appeal  on  the  refusal  to  deduct  the 
federal  inheritance  tax  denied.     (P.  167.) 

Appeal  from  an  order  assessing  the  transfer  tax. 

Cadwalader,  Wickersham  &  Taft  (Francis  Smyth 
and  Edgar  W.  Freeman,  of  counsel),  for  executors. 

Lafayette  B.  Gleason  (Schuyler  C.  Carlton,  of  coun- 
sel),  for  state  comptroller. 

Foley,  S.  The  executors  appeal  on  several  grounds 
from  the  order  assessing  the  transfer  tax.  The  first 
ground  is  that  the  appraiser  has  included  as  taxable 
property  the  transfers  effected  by  the  exercise  of 
powers  of  appointment  of  parts  of  two  trust  estates. 
These  powers  were  created  by  the  wills  of  the  father 
and  grandfather  of  decedent,  who  were  residents  of 
Massachusetts.  The  decedent,  who  died  April  IS, 
1919,  was  a  resident  of  New  York.  The  trust  prop- 
erty is  located  in  Massachusetts.  The  trustees  are 
residents  of  that  state,  and  the  will  of  decedent  was 
proved  in  Massachusetts.  It  is  claimed  by  the  execu- 
tors that  the  statute  is  unconstitutional  in  its  appli- 
cation to  these  transfers  and  that  this  court  has  no 
jurisdiction  to  assess  a  tax  upon  them.  The  appeal 
on  this  ground  is  overruled.  Section  220,  subdivision 
6,  of  the  Tax  Law^  provides  that  as  a  condition  of  exer- 
cising a  power  of  appointment  it  shall  be  **  deemed 
a  transfer  taxable  under  the  provisions  of  this  chapter 


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Matter  of  Canda.  163 

Misc.]     Surrogate's  Court,  New  York  County,  January,  1921. 

in  the  same  manner  as  though  the  property  to  which 
such  appointment  relates  belonged  absolutely  to  the 
donee  of  such  power  and  had  been  bequeathed  or 
devised  by  such  donee  by  will."  The  validity  of  this 
subdivision  has  been  upheld  in  Matter  of  Vanderbilt, 
50  App.  Div.  246;  aflfd.,  163  N.  Y.  597;  Matter  of 
Doics,  167  id.  227;  aflfd.,  mh  nom.  Orr  v.  Gilbnan,  183 
U.  S.  278;  Matter  of  Delauo,  176  N.  Y.  486;  affd.,  sub 
nom.  Chanter  v.  Kelsey,  2C7)  U.  S.  466.  My  distin- 
guished predecessor,  Surrogate  Fowler,  in  Matter  of 
Frazier,  N.  Y.  L.  J.,  March  28,  1912,  held  that  where 
the  original  donor  was  a  resident  of  Pennsylvania  and 
the  power  was  exercised  by  the  donee,  a  resident  of 
the  state  of  New  York,  the  appointment  was  a  trans- 
fer taxable  under  this  subdivision.  Surrogate 
Ketcham  of  Kings  county  in  Matter  of  Seaman,  N.  Y. 
L.  J.,  Dec.  5,  1913,  held  to  the  same  effect.  In  that 
ease  the  fund  over  which  the  power  was  exercised  was 
situated  in  Pennsylvania  and  was  created  by  the  will 
of  a  resident  of  that  state.  The  power  was  exercised 
by  a  resident  of  New  York  by  a  will  executed  in  this 
state.  In  Matter  of  Hull,  111  App.  Div.  322;  affd.,  186 
N.  Y.  586,  the  Appellate  Division,  second  department, 
held  in  the  case  of  a  non-resident  donee  that  liability 
for  an  inheritance  tax  did  not  depend  upon  the  loca- 
tion of  the  property,  but  where  the  beneficiary  came 
into  possession  through  the  exercise  of  a  privilege 
conferred  by  the  state  it  was  within  the  jurisdiction 
and  dominion  of  the  legislature  to  determine  the  ques- 
tion of  taxation.  The  right  to  take  property  by  devise 
or  descent  is  a  creature  of  the  law  and  not  a  natural 
right;  the  sovereign  power  of  the  legislature  which 
confers  this  privilege  may  impose  conditions  upon  it. 
Chanter  v.  Kelsey,  supra.  It  is  immaterial  that  the 
will  here  was  probated  in  Massachusetts.  It  was  exe- 
cuted in  New  York  by  a  New  York  resident,  and  prop- 


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164  Mattbb  of  Canda. 

Surrogate's  Courts  New  York  County,  January,  1921.     [Vol.  114. 

erty  in  this  state  is  being  administered  by  executors 
named  in  the  will.  The  situs  of  personal  property  is 
in  the  state  of  the  domicile,  although  such  property 
is  actually  without  this  state.  State  of  Colorado  v. 
Harbeck,  189  App.  Div.  865,  872;  Bullen  v.  Wisconsin, 
240  U.  S.  625;  Blackstone  v.  Miller,  188  id.  189,  204; 
Matter  of  James,  144  N.  Y.  6, 10;  Matter  of  Lydig,  113 
Misc.  Rep.  263.  The  executors^  contention  cannot  be 
sustained  that  the  law  of  Massachusetts,  where  the 
trust  estates  are  located,  is  applicable  in  this  matter. 
Walker  v.  Mansfield,  221  Mass.  600,  is  cited  by  them. 
That  case  held  that  the  exercise  of  the  power  of  testa- 
mentary disposition  by  a  resident  donee  appointing 
property  located  in  Maryland,  under  a  statute  similar 
to  ours,  was  not  subject  to  a  succession  tax.  The  law 
of  New  York  alone  applies  in  this  estate.  '*  The 
power  of  every  government  over  property  within  its 
jurisdiction  and  territorial  limits  extends  to  reason- 
able taxation  for  government  support.''  Matter  of 
Majot,  199  N.  Y.  29;  Bullen  v.  State  of  Wisconsin,  240 
U.  S.  625.  Mrs.  Canda  was  a  resident  of  this  state 
and  her  personal  property  wherever  situated  was 
within  our  jurisdiction  for  tax  purposes.  The  legis- 
lature has  declared  the  appointments  made  by  her  to 
be  transfers  of  her  property  and  they  are  taxable. 

It  appears,  however,  that  her  will  exercised  the 
powers  in  favor  of  her  trustees  with  life  estate  to  her 
children,  and  that  the  transfer  to  them  is  part  of  what 
they  would  have  received  under  the  wills  of  their 
ancestors  if  the  powers  had  not  been  exercised.  It 
is  claimed  that  an  election  to  take  under  the  latter 's 
wills  had  been  made  by  the  children.  The  appraiser 
therefore  erred  in  including  the  value  of  their  life 
estates  as  taxable  (Matter  of  Lansing,  182  N.  Y.  238; 
Matter  of  Slosson,  216  id.  79),  and  the  report  is 
remitted  for  the  purpose  of  eliminating  the  values  of 


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Matteb  of  Canda.  165 

Misc.]     Surrogate's  Court,  New  York  County,  January,  1921. 

the    life    estates    under    the    Sewall    and    Hubbard 
trusts. 

Second.     The  executors'  second  ground  of  appeal 
is  that  if  these  transfers  are  taxable,  the  remain- 
ders should  be  suspended  from  taxation  imtil  it  is 
determined  whether  the  donees  of  the  new  powers 
given  in  Mrs.  Cauda 's  will  shall  exercise  them.    Her 
will  provides  that  in  default  of  the  exercise  of  the 
powers,  the  remainders  shall  vest  in  the  issue  of  her 
children,  or  in  default  of  issue  in  their  next  of  kin 
under  the  laws  of  Massachusetts.    The  appeal  on  this 
ground  is  denied.     The  donees  of  the  new  powers 
reside  abroad,  the  son  of  Mrs.  Cauda  in  France,  and 
the  daughter  in  England.    There  is  an  ample  fund  in 
the  state  of  New  York  now  from  which  to  pay  the 
transfer  tax.    If  this  property  be  removed  from  the 
state  in  the  course  of  administration,  or  on  final  dis- 
tribution, there  will  be  no  funds  available  for  the 
payment  of  the  tax  in  case  the  remainders  vest  under 
the  will  of  this  decedent.    It  seems  to  me  that  the  pro- 
visions of  section  230  and  of  section  241  of  the  Tax 
Law  contemplated  the  very  situation  existing  here, 
and  the  impounding  of  sufficient  assets  to  meet  tliis 
contingency  as  a  protection  to  the  state   treasury. 
Under  her  will  the  estates  subject  to  contingencies  are 
easily  ascertainable,  by  computation,  and  come  within 
rule  1  laid  down  in  Matter  of  Terry,  218  N.  T.  218,  223. 
The  contingencies  in  this  estate  are  not  mere  possibili- 
ties of  reverter,  as  in  Matter  of  Terry.   The  probability 
of  the  vesting  of  the  remainders  in  default  of  the 
exercise  of  the  powers  is  not  remote.    Crackanthorpe  • 
V.  Sickles,  156  App.  Div.  753 ;  Real  Property  Law,  §  41. 
Since  Matter  of  Howe,  86  App.  Div.  286;  affd.,  176  N. 
Y.  570,  the  decisions  of  the  Court  of  Appeals  have  pro- 
gressively aided  the  state  comptroller  in  securing  the 
immediate  payment  of  the  tax  upon  transfers  limited 


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166  Matter  of  Canda. 

Surrogate's  Court,  New  York  County,  January,  1921.     [Vol.  114. 

on  conditions  and  contingencies,  and  have  given  full 
vigor  to  the  legislative  plan  of  requiring  the  payment 
of  taxes  at  the  highest  rate  at  which  they  might  be 
taxed.  Matter  of  Zborowski,  213  N.  Y.  109 ;  Matter  of 
Parker,  226  id.  260.  In  the  latter  case  Judge  Cardozo 
clearly  sets  forth  this  policy  as  follows:  **  The  pur- 
pose is  to  put  at  once  into  the  treasury  of  the  state 
the  largest  sum  which  in  any  contingency  the  remain- 
dermen may  have  to  pay.  The  remaindermen  do  not 
suffer,  for  when  the  estate  takes  effect  in  i)ossession, 
there  will  be  a  refund  of  any  excess  (Tax  Law, 
§  230).  The  life  tenant  does  not  suffer,  or,  at  all 
events,  not  seriously,  for  interest  is  paid  by  the  comp- 
troller upon  the  difference  betw^een  the  tax  at  the 
highest  rate  and  the  tax  that  would  be  due  if  the  con- 
tingencies or  conditions  had  happened  at  the  date  of 
the  appraisal  (Tax  Law,  §  241).  If  the  trustees  pre- 
fer, they  may  deposit  securities  of  approved  value,  and 
receive  the  accruing  income  (§  241).  To  guard 
against  shrinkage  of  values,  the  statute  bids  them  pay 
the  balance,  if  the  deposit  turns  out  to  be  too  small. 
Everywhere  the  scheme  disclosed  is  absolute  safety 
for  the  state  with  a  minimum  of  hardship  for  the  life 
tenant.  *  •  *  Collection  is  imperilled  when  the 
state  must  keep  track  of  the  estate  through  all  the 
changes  and  chances  of  an  indefinite  future.  The  path 
of  safety  is  followed  when  collection  is  made  at  once.' ' 
The  amendments  of  1911  to  section  230  and  the  addi- 
tional provisions  for  interest  or  income  in  favor  of 
the  beneficiaries  in  section  241  require  that  the  tax 
shall  be  presently  imposed  and  not  suspended.  There 
is  nothing  peculiarly  sacred  about  estates  which  are 
transmitted  by  means  of  powers,  and  there  is  no 
sound  reason  why  they  should  not  be  governed  by  the 
same  rules  which  control  the  devolution  of  estates  by 
other  methods.    Farmers  Loan  d  Trust  Co,  v.  Kip, 


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ElTTENBERG   V,  BarrETT.  167 

Misc.]  City  Court  of  New  York,  January,  1921. 

192  N.  Y.  266,  278.  If  the  powers  are  exercised  by  the 
children  of  Mrs.  Canda,  no  tax  will  be  due  in  this 
estate,  and  a  refund  by  the  state  may  be  compelled 
under  the  law.  If,  however,  the  appointment  is  not 
made  by  their  wills,  the  state  will  be  protected.  Mat- 
ter of  Blun,  176  App.  Div.  189. 

Third.  The  appeal  of  the  executors  on  the  inclusion 
of  a  tax  tmder  section  221-b  of  the  Tax  Law  on  the 
securities  in  the  trust  fund  in  Massachusetts  is 
sustained.    Matter  of  Bowers,  183  N.  Y.  Supp.  137. 

Fourth.  The  appeal  of  the  executors  on  the  refusal 
of  the  appraiser  to  deduct  the  federal  inheritance  tax 
is  denied.  Matter  of  Sherman,  222  N.  Y.  340;  Matter 
of  Bierstadt,  178  App.  Div.  836. 

Decreed  accordingly. 


Louis  RiTTENBERG,   ISAAC  RlTTENBERG,  JoSEPH  RlTTEN- 

BBRG  and  Newman  Rittenberg,  Composing  the 
Firm  of  and  Transacting  Business  under  the 
Firm  Name  and  Style  of  Rittenberg  Brothers, 
Plaintiffs,  v.  William  M.  Barrett,  as  President  of 
the  Adams  Express  Company,  Defendant. 

(City  Court  of  the  City  of  New  York,  Special  Term,  January,  1921.) 

Deporitions  —  when  motion  to  vacate  order  for  examination  before 
trial  denied— express  companies  —  joint  stock  associations 
—  parties  —  Code  Oiv.  Pro.  §§  870,  872. 

Where  the  defendant  in  an  action  brought  against  him  as 
president  of  an  express  company,  which,  by  not  denying  in 
his  verified  answer  he  admits  is  a  joint  stock  association  of 
which  he  is  the  president,  and  the  moving  affidavit  upon  which 
an  order  for  his  examination  before  trial  as  president  of  the 
express  company  "or  any  other  officer"  of  the  company, 
clearly  sets  forth  such  facts  and  circumstances  as  show  the 
materiality  and  necessity  of  the  testimony  sought,  a  motion  to 
vacate  the  order  will  be  denied  but  the  order  will  be  modified 
to  the  extent  of  striking  out  the  words  ''  or  any  other  officer." 


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168  RiTTBNBERG   V.   BarrETT. 

City  Court  of  New  York,  January,  1921.     [Vol.  114. 

The  defendant,  as  president,  and  not  the  express  company, 
was  the  ''party  to  the  action"  within  the  meaning  of  sec* 
tions  970  and  872  of  the  Code  of  Civil  Procedure. 

Motion  to  vacate  an  order  for  examination  before 
trial 

Stockton  &  Stockton,  for  motion. 

Olcott,  Bonynge,  McManus  &  Ernst,  in  opposition. 

Callahan,  J.  This  action  is  brought  by  plaintiflF 
against  **  William  B.  Barrett,  as  president  of  the 
Adams  Express  Company."  The  defendant,  by  not 
denying,  admits  that  the  Adams  Express  Company 
is  a  joint  stock  corporation  of  which  the  defendant 
is  the  president.  Plaintiff  has  secured  an  order  for 
the  examination  before  trial  of  '*  William  M.  Barrett, 
as  president  of  the  Adams  Express  Company,  the 
defendant  herein,''  or  any  other  officer  of  said  Adams 
Express  Company,  respecting  certain  matters  alleged 
to  be  necessary  and  material  for  plaintiff  to  prove 
upon  trial.  Defendant  moves  to  vacate  this  order 
upon  several  grounds,  to  wit:  (1)  That  the  affidavit 
upon  which  the  order  is  based  is  insufficient;  (2)  that 
the  order  for  the  examination  of  *'  William  M.  Bar- 
rett, as  president  of  the  Adams  Express  Company,*' 
is  unauthorized  by  the  Code,  and  (3)  that  the  direction 
for  the  examination  of  *'  any  other  officer  ''  is 
improper.  The  first  objection  is,  in  my  opinion,  with- 
out merit,  as  the  affidavit  clearly  sets  forth  such  facts 
and  circumstances  as  show  the  materiality  and  neces- 
sity of  the  testimony  sought  to  be  elicited.  As  to  the 
second  ground  urged  the  defendant  contends  that 
**  William  M.  Barrett,  as  president  of  Adams  Express 
Company,''  is  not  an  adverse  party  within  the  mean- 


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RiTTBNBEBG  V.  BahBETT.  169 

Misc.]  City  Court  of  New  York,  January,  1921. 

ing  of  sections  870  and  872  of  the  Code  of  Civil  Pro- 
cedure, and,  therefore,  as  the  order  is  directed  to 
him  as  such  president  and  does  not  direct  the  exami- 
nation of  the  joint  stock  corporation  by  one  of  its 
officers,  the  same  is  without  authority  of  law  and  must 
be  vacated.    It  is  true  that  in  cases  where  a  corpo- 
ration is  party  defendant  the  order  should  direct  the 
examination  of  the  corporation  as  the  adverse  party 
and    then  provide  that   the   information   sought  be 
elicited  by  the  examination  of  its  officers  {Ediicational 
Films  Corp.  v.  Lincoln  d  P.  Co.,  Inc.,  192  App.  Div. 
621,  and  cases  cited),  and  the  defendant  claims  that  by 
analogy  the  same  rule  is  applicable  in  the  case  of  a 
joint  stock  corporation  upon  the  theory  that  the  asso- 
ciation and  not  the  officer  against  whom  the  suit  is 
brought  is  the  party  to  the  action  within  the  meaning 
of  the  Code  sections  above  cited.    In  view  of  this  con- 
tention it  is  incumbent  upon  the  court  to  determine 
what  is  meant  by  the  words  **  party  to  an  action  '^  as 
contained  in  section  870  of  the  Code,  and  whether  in 
the  instant  case  the  association  or  the  officer  sued  rep- 
resenting it  is  such  party.    In  Woods  v.  De  Figaniere, 
1  Robt.  607,  610,  the  defendant,  as  in  this  case,  was 
sued  in  his  representative  capacity  as  president  of 
a  joint  stock  corporation.    There,  also,  as  here,  the 
answer  was  verified  by  him  as  such  defendant.    The 
court  in  holding  that  the  president  of  the  company 
was  the  party  defendant,  and  as  such  might  be  re- 
quired to  submit  to  examination  before  trial,  said: 
**  What  does  the  Code  here  mean  by  the  words,  *  a 
party  to  an  action  '  f    Clearly  it  means  any  and  every 
person,  who,  throughout  its  provisions,  is  described  as 
a  party  to  an  action.    A  party  to  an  action  is  one  who 
is  named  as  plaintiff  or  defendant,  and  appears  on  the 
record  as  such,  and  no  other  is  meant.    The  title  *  par- 
ties to  civil  actions  '  prescribes  who  may  sue  as  plain- 


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170  RiTTENBERG   V,    BarrETT. 


City  Court  of  New  York,  January,  1921.     [Vol.  114. 


tiflfs  and  who  may  be  sued  as  defendants.  By  section 
134,  the  summons  is  to  be  served  on  the  defendant  per- 
sonally, except  when  served  on  a  corporation,  or  a 
minor  under  the  age  of  fourteen  years,  or  the  person 
named  in  subdivision  three  of  that  section.  Plead- 
ings, when  verified,  must  be  verified  by  the  party, 
except  in  the  case  of  a  corporation,  or  where  they 
are  verified  by  an  agent  on  a  sufficient  excuse  being 
shown  therefor.  •  •  *  AH  the  provisions  of  the 
Code,  as  a  general  rule,  when  treating  of  parties 
to  the  action,  mean  only  the  parties  to  the  record, 
whether  nominal  parties,  or  the  actual  parties  in 
interest.  And  when  a  plaintiff  or  defendant  is  but 
a  mere  nominal  party,  and  has  no  interest  in  the 
event,  and  his  property  cannot  be  touched  by  the 
judgment,  he  alone  is  included  in  the  description 
of  a  party  to  the  action;  and  the  person  for  whose 
immediate  benefit  the  suit  is  prosecuted  or  defended 
is  not  included  in  the  description.  *  *  *  De  Figa- 
niere  is  the  only  party  defendant  in  this  action.  He 
is  the  nominal  party  and  is  so  named  in  the  statute  by 
force  of  vrhich  he  is  sued.  He  is  as  much  a  party  as 
an  executor,  or  any  other  party  named  in  section  375 
of  the  Code.  They  have  no  actual  interest  in  the 
result,  and  their  property  cannot  be  touched  on  a 
judgment  against  them,  not  even  for  the  costs  of  the 
action,  unless  charged  with  them  personally  for  mis- 
management or  bad  faith.  *  *  *  The  joint  stock 
company  is  not  a  party  to  the  action :  it  is  not  a  legal 
entity,  and  as  such  cannot  sue  or  be  sued.  The  indi- 
vidual associates,  as  such,  are  not  the  parties.  Th& 
action  is  defended  for  the  immediate  benefit  of  the 
joint  stock  company,  but  that  is  not  a  party,  and  can- 
not be  made  one.  It  has  no  capacity  to  sue  or  be  sued, 
as  such,  and  therefore  cannot  appear  on  the  record 
as  a  party.    De  Figaniere  is  the  nominal  party  def  end- 


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RiTTENBERG   V,   BaRRETT.  171 

Misc.]  City  Court  of  New  York,  January,  1921. 

ant,  and  the  only  person  named  as  a  party  defendant ; 
and  to  claim  immunity  from  the  statute  compelling 
a  party  to  submit  to  be  examined,  he  must  show  that 
some  parties,  when  nominal  parties  only,  are  exempt, 
and  that  he  comes  within  the  class  of  exempt  parties. 
This  has  not  been  shown.  On  the  contrary,  the  Code 
includes  all  parties  to  the  action,  whether  nominal  or 
the  actual  parties  in  interest;  and  he  is,  therefore,  lia- 
ble to  be  examined  the  same  as  any  other  party/'  The 
reasoning  in  the  above  case  is  approved  by  the  Court 
of  Appeals  in  People  v.  Mutual  Gas  Light  Co.,  74 
N.  Y.  434,  436,  where  it  is  said :  *'  Upon  the  construc- 
tion of  a  similar  provision  of  the  former  Code  the 
New  York  Superior  Court,  after  an  elaborate  and 
careful  examination  of  the  question  in  Woods  v.  De 
Figaniere,  1  Robt.  610,  arrived  at  the  same  conclu- 
sion upon  reasoning  which  meets  our  approval/'  In 
McGuffin  V.  Dinsmore,  4  Abb.  N.  C.  241,  the  court, 
upholding  the  right  of  plaintiff  to  an  order  for  the 
examination  of  William  B.  Dinsmore  as  president  of 
the  Adams  Express  Company,  a  joint  stock  corpora- 
tion, before  trial,  said:  **  William  B.  Dinsmore  is  the 
only  '  party  '  defendant  in  this  action,  notwithstand- 
ing that  he  is  sued  in  his  representative  capacity  as 
president  of  an  association  consisting  of  numerous 
individuals  {Wood  v.  De  Figaniere,  1  Robt.  607). 
*  *  *  I  am  of  opinion  that  neither  the  Adams 
Express  Company  by  its  officers,  nor  its  individual 
members,  other  than  such  one  or  more  of  them  as  are 
or  may  be  made  parties  to  the  record,  can  be  examined 
as  parties  before  trial,  under  section  870.  The  plain- 
tiff was  not  obliged  to  avail  himself  of  the  privilege 
accorded  to  him  by  the  statute  of  1849,  of  suing  the 
association  in  the  name  of  its  president.  He  might 
have  proceeded  at  his  option,  in  tlie  first  instance, 
egamst  th^  persons  constituting  such  association,  by 


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172  RiTTENBERG  V,  BARrKTT. 

City  Court  of  New  York,  January,  1921.     [Vol.  114. 

making  them  parties  to  the  record,  in  which  case  each 
and  all  of  them  would  have  been  liable  to  examination. 
•  *  *  The  association  is  not  a  corporation  and- can- 
not be  examined  in  this  suit  as  a  party  by  its  officers, 
or  otherwise  than  through  the  particular  individual 
who,  by  virtue  of  the  statute  and  for  the  purposes  of 
action  represents  it,  as  the  party  of  record.  Its  officers, 
other  than  such  individual,  can  only  be  examined  as 
witnesses  in  the  same  manner  as  if  they  sustained  no 
official  relation  to  it.*'  In  Brooks  v.  Dinsmore,  15 
Daly,  428,  the  court,  on  appeal,  held  that,  pursuant 
to  the  provisions  of  the  Consolidation  Act  requiring 
actions  in  the  District  Court  to  be  brought  in  the  dis- 
trict in  which  either  the  plaintiff  or  defendant  resides, 
an  action  brought  against  a  joint  stock  association  in 
the  name  of  its  president  must  be  brought  in  the  dis- 
trict in  which  either  the  plaintiff  or  such  president 
resides,  the  court  holding  that  such  president  is  the 
only  party  defendant.  So  also,  in  an  action  brought 
in  this  state  by  the  president  of  a  joint  stock  associa- 
tion in  his  own  name  as  such  president  (he  being  a 
citizen  of  this  state),  it  has  been  held  that,  so  far  as 
determining  whether  the  action  should  be  removed  to 
the  United  States  Circuit  Court  by  reason  of  diversity 
of  residence  of  the  respective  parties  to  the  suit,  the 
citizenship  of  plaintiff  is  governed  by  the  citizenship 
of  the  person  suing.  Fargo  v.  McVicker,  55  Barb. 
437.  In  a  similar  case  (Bacon  v.  Dinsmore,  42  How. 
Pr.  368)  the  court,  in  granting  defendant's  applica- 
tion for  a  change  of  venue,  said:  *'  The  defendant 
has  a  legal  right  to  have  the  place  of  trial  changed  to 
New  York,  if  the  persons  named  as  plaintiff  and 
defendant  are  the  parties  to  the  action.  •  •  •  We 
think  they  are  parties.  The  associations  which  they 
represent,  clearly  are  not  nor  could  they  be  made 
parties,  inasmuch  as  they  have  no  legal  capacity  to 


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RiTTENBEBG   V.   BarrETT.  173 

Misc.]  City  Court  of  New  York,  January,  1921. 

sue,  or  to  be  sued.''  I  have  been  able  to  find  but  one 
case  opposed  to  the  views  above  expressed.  Duncan  v. 
Jones,  32  Hun,  12.  This  was  an  action  against  George 
Jones  as  treasurer  of  the  association  publishing  the 
New  York  Times,  a  joint  stock  association.  The  action 
was  for  libel  and  the  answer  denied  the  material  alle- 
gations of  the  complaint,  admitting  only  that  there  is 
**  an  association  publishing  the  New  York  Times/' 
The  facts  as  to  which  defendant  was  to  be  examined 
under  the  order  were  as  follows :  (1)  The  existence  of 
the  joint  stock  association;  (2)  that  it  consisted  of 
more  than  seven  members,  and  (3)  that  the  defendant 
is  its  treasurer.  The  court  below  vacated  the  order 
upon  the  ground  that,  it  being  an  action  in  libel,  the 
defendant  could  not  be  required  to  testify  to  any  facts 
essential  to  sustain  an  indictment  against  him  and  his 
associates,  and  that  the  composition  of  such  association 
was  such  a  fact.  Upon  appeal  the  court  questioned 
whether  an  action  for  libel  could  be  brought  against 
the  treasurer  under  section  1919  of  the  Code,  but  left 
this  matter  for  determination  at  Trial  Term,  and  held 
that  notwithstanding  the  fact  that  the  action  was 
brought  pursuant  to  the  provisions  of  such  section, 
such  officer  is  not  necessarily  a  member  of  the  associa- 
tion or  partnership;  that  no  judgment  goes  against 
him  personally;  that  he  cannot  be  arrested  and  no 
execution  can  be  issued  against  his  property  or  per- 
son, but  that  the  same  goes  against  the  personal  prop- 
erty of  the  association  only,  and  for  this  reason  such 
officer  was  not  the  party  to  the  action  in  the  technical 
sense  required  by  section  870.  Notwithstanding  the 
holding  in  the  case  last  above  cited,  I  believe  the  pre- 
vailing rule  of  construction  in  this  jurisdiction  is  that 
the  officer  and  not  the  association  is  the  party  within 
the  meaning  of  sections  870  and  872  of  the  Code,  and 
as  this  construction,  in  my  opinion,  is  best  supported 


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1 74  RiccoBONo  V.  Cleary. 

City  Court  of  New  York,  January,  1921.     [Vol.  114. 

by  reasoning,  analogy  and  convenience,  I  am  inclined 
to  follow  same.  It  is  conceded  that  the  words  '*  or 
any  other  oflBcer  ''  have  no  place  in  the  order,  and 
hence  the  same  will  be  modified  to  the  extent  of  strik- 
ing them  out.  Motion  to  vacate  denied,  with  $10  costs, 
but  order  modified  as  indicated. 

Ordered  accordingly. 


John    Riccobono,    Plaintiff,   v.   Patrick   J.    Cleary, 

Defendant. 

(City  Court  of  the  City  of  New  York,  Special  Term,  January,  1921.) 

Pleading  —  when  motion  to  strike  out  defense  denied  —  use  and 
occupation  ^-  statutes  —  tender  —  deposit  —  tenant  out  of 
possession  —  Laws  of  1920,  chap.  944,  §  6. 

In  an  action  for  use  and  occupation  the  complaint  alleged 
that  prior  to  the  commencement  of  the  action  defendants 
vacated  the  premises,  and  the  answer,  after  denials  of  the  alle- 
gations of  the  reasonable  value  of  the  use  and  occupation, 
pleaded  as  a  separate  defense  that  the  occupation  of  the  prem- 
ises was  under  a  special  agreement  fixing  at  a  sum  stated  the 
rent  to  be  paid,  conceded  that  a  certain  sum  was  due  under 
said  agreement,  and  pleaded  a  tender  thereof  to  plaintiff.  A 
motion  to  strike  out  said  defense  was  made  on  the  ground  that 
under  the  statute  (Laws  of  1920,  chap.  944,  §  6)  it  was  improp- 
erly pleaded  unless  at  the  time  of  answering  defendants 
deposited  with  the  clerk  of  the  court  a  sum  equal  to  the  amount 
paid  as  rent  during  the  preceding  month  or  saeh  sum  as  was 
reserved  as  rent  under  the  agreement  under  which  possession 
was  obtained.  Held,  that  the  defense  raised  no  issue  under 
the  statute  as  to  the  reasonableness  of  the  amount  demanded 
in  the  complaint,  and  the  motion  will  be  denied  though  it  was 
conceded  that  the  deposit  called  for  by  the  statute  was  not  made. 

It  was  not  the  legislative  intent  that  the  requirement  for  a 
deposit  should  be  applicable  except  in  cases  where  the  tenant 
is  in  possession  of  the  premises  involved,  at  the  time  of  the 


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RiccoBONo  V.  Cleary.  175 

Misc.]  City  Court  of  New  York,  January,  1921. 

institution  of  the  snit,  and  a  motion  to  strike  out  the  denials, 
on  the  same. ground  that  the  motion  to  strike  out  the  separate 
defense  was  made,  will  be  denied. 

Motion  to  strike  out  certain  denials  and  a  separate 
defense  set  up  in  defendant's  answer. 

G.  Arnold  Moses,  for  motion. 

Joseph  V.  McEee  (Charles  Eno,  of  counsel), 
opposed. 

Callahan,  J.  This  is  a  motion  made  by  plaintiff  to 
strike  out  certain  denials  and  a  separate  defense  set 
up  in  the  defendant's  answer.  Plaintiff  sues  for  the 
alleged  reasonable  value  of  the  use  and  occupation  by 
defendant  of  a  certain  house  in  the  city  of  New  York. 
It  appears  from  the  complaint  that  prior  to  the  insti- 
tution of  this  action  defendant  herein  vacated  said 
premises.  The  answer  of  the  defendant  contains 
denials  of  the  allegations  of  the  reasonable  value  of 
the  use  and  occupation  of  the  premises  and  sets  up  as 
a  separate  defense  that  the  premises  were  occupied 
under  a  special  agreement  fixing  at  a  sum  stated  the 
rent  to  be  paid  therefor.  It  concedes  that  under  said 
agreement  a  certain  sum  is  due  and  pleads  that  the 
defendant  has  tendered  such  sum  to  the  plaintiff. 
The  present  motion  to  strike  out  the  denials  of  reason- 
able value  and  the  whole  of  the  separate  defense  plead- 
ing the  special  agreement  and  tender  is  based  upon  the 
contention  that  under  the  provisions  of  section  6  of 
chapter  944  of  the  Laws  of  1920  such  denials  and  such 
defense  are  improperly  pleaded  unless  at  the  time  of 
answering  the  defendant  deposit  with  the  clerk  of  the 
court  a  sum  equal  to  the  amount  paid  as  rent  during 
the  preceding  month  or  such  sum  as  was  reserved  as 
rent  under  the  agreement  under  which  possession  was 


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176  RiccoBONo  V.  Clbary. 

City  Court  of  New  York,  January,  1921.     [Vol.  114. 

obtained.  It  is  conceded  that  no  such  deposit  was 
made  here.  The  contention  of  the  plaintiff  clearly  has 
no  force  with  respect  to  the  separate  defense.  The 
statute  refers  to  denials  or  defenses  which  raise  the 
issue  of  the  reasonableness  of  the  amount  demanded 
in  the  complaint.  The  separate  defense  referred  to 
raises  no  such  issue.  It  sets  forth  that  the  occupation 
of  the  defendant  was  under  a  special  agreement,  and 
such  agreement  is  properly  pleaded  as  a  bar  to  the 
action  in  assumpsit  for  rental  value.  The  motion  with 
respect  to  the  denials  raises  a  more  diflBcult  question. 
Upon  a  casual  reading  the  statute  may  appear  to 
require  a  deposit  in  every  action  in  which  a  defendant 
raises  the  issue  of  the  reasonableness  of  a  sum  claimed 
as  rental  value.  A  careful  examination  of  the  whole 
statute,  however,  compels  me  to  hold  that  it  was  not 
intended  by  the  legislature  that  the  requirement  for 
a  deposit  should  be  applicable  except  in  cases  where 
the  defendant  (tenant)  is  in  possession  of  the  premises 
involved  at  the  time  of  the  institution  of  the  suit  A 
reading  of  the  last  sentence  of  section  6  of  the  act  in 
question  shows  the  intent  contended  for.  That  sen- 
tence says  if  judgment  in  the  action  is  rendered  for 
plaintiff  and  it  cannot  be  fully  satisfied  from  the  sum 
deposited  the  plaintiff  shall  be  entitled  to  a  warrant 
dispossessing  all  persons  from  the  premises  in  ques- 
tion. Consideration  of  the  circumstances  under  which 
this  legislation  was  adopted,  the  report  of  the  commit- 
tee that  recommended  it  and  a  reading  of  the  statute 
itself  show  that  the  intent  of  the  legislature  was  to 
have  the  requirement  for  deposit  apply  only  in  those 
cases  in  which  the  tenant's  continued  possession  of 
the  premises  without  paying  the  landlord  some  rent 
would  be  unfair  to  the  landlord.  It  was  clearly  not 
mtended  to  be  a  statute  limiting  the  right  of  a  former 
tenant  to  litigate  the  question  of  the  reasonableness 


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MOLLOY  V.  COLBTTI.  177 

Misc.]  Supreme  Court,  January,  1921. 

of  the  rent  demanded  when  the  litigation  of  such  ques- 
tion in  no  way  affected  the  emergency  which  the  legis- 
lature was  seeking  to  cope  with  in  passing  the  statute 
involved.    The  motion  is  denied. 

Motion  denied. 


Joseph    E.    Molloy,    Plaintiff,    v.   Joseph    Coletti. 

Defendant. 

(Supreme  Court,  New  Yorii:  Special  Term,  January,  1921.) 

Pleading  —  when  demurrer  to  complaint  overruled  —  restaurant 
keepers  —  injury  to  guest  —  when  motion  for  judgment  on 
the  pleadings  denied. 

Where  in  an  action  by  one  who  while  a  guest  in  defendant's 
restaurant  was  seriously  injured  by  being  struck  on  the  head 
by  a  heavy  glass  water  tumbler  thrown  by  a  patron  of  the 
restaurant,  the  complaint  alleges  that  defendant  had  notice, 
through  the  continued  offensive,  boisterous  and  unlawful  con- 
duct of  the  patron  who  threw  the  tumbler,  a  demurrer  to  the 
complaint  upon  the  ground  that  it  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action  will  be  overruled,  and  defendant's 
motion  for  judgment  on  the  pleadings  denied  with  leave  to 
serve  an  answer. 

.  Motion  for  judgment  on  the  pleadings. 

R.  Waldo  MacKewan,  for  plaintiff. 

Jnlius  Halheimer,  for  defendant. 

Nbwburgeb,  J.  The  plaintiff  alleges  that  while  a 
guest  in  the  restaurant  operated  and  owned  by  the 
defendant  he  was  violently  struck  on  the  head  by  a 
heavy  glass  water  tumbler  thrown  by  a  patron  of  said 
restaurant  and  was  seriously  injured.  He  further 
alleges  that  it  was  the  duty  of  the  defendant  to  afford 
protection  to  him  from  unlawful  acts  of  other  patrons, 
12 


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178  Childs  Co.,  Inc.,  v.  Reardon,  Inc. 

Supreme  Court,  January,  1921.  [Vol.  114. 

and  that  notwithstanding  this  duty  the  defendant, 
although  duly  warned  by  the  boisterous,  offensive  and 
unlawful  conduct  of  the  patron  who  threw  the  glass, 
made  no  effort  to  protect  plaintiff.  The  defendant 
demurs  to  the  complaint  upon  the  ground  that  the 
same  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.  In  Rommel  v.  Schambacher,  120 
Penn.  St.  579,  582,  it  was  held:  *'  Where  one  enters  a 
saloon  or  tavern,  opened  for  the  entertainment  of  the 
public,  the  proprietor  is  bound  to  see  that  he  is  prop- 
erly protected  from  the  assaults  or  insults,  as  well  of 
those  who  are  in  his  employ,  as  of  the  drunken  and 
vicious  men  whom  he  may  choose  to  harbor. ' '  As  the 
complaint  alleges  that  the  defendant  had  notice 
through  the  continued  off ensive,  boisterous  and  unlaw- 
ful conduct  of  the  patron  who  injured  plaintiff,  the 
motion  for  judgment  on  the  pleadings  must  be  denied, 
with  costs,  with  leave  to  the  defendant  to  answer. 

Motion  denied,  with  costs. 


E.  E.  Childs  Company,  Inc.,  Plaintiff,  v.  P.  Reardon, 
Inc.,  Defendant. 

(Supreme  Court,  New  York  Special  Term,  January,  1921.) 

Oontracts  —  what  constitutes  —  warehousemen  —  receipts  —  nego- 
tiable instruments  —  pleading  —  General  Business  Law,  §  91. 

A  provision  in  a  warehouse  receipt  that  the  goods  were  to  be 
stored  in  a  particular  warehouse  constitutes  a  contract  that 
they  shall  remain  there  and  no  change  can  be  made  except  by 
consent  of  the  holder  of  the  receipt. 

After  a  negotiable  warehouse  receipt,  conforming  to  section  91 
of  the  General  Business  Law,  had  been  given  by  defendant  for 
goods  stored  in  one  of  its  warehouses,  it  was  indorsed  and 
delivered  to  one  to  whom  the  goods  were  sold,  and  the  buyer, 
upon  the  sale  of  the  same  to  plaintiff,  indorsed  and  delivered 


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Childs  Co.,  Inc.,  v.  Reardon,  Inc.  179 

Misc.]  Supreme  Court,  January,  1921. 

to  the  purchaser  the  warehouse  receipt.  Without  the  consent 
of  plaintiff  or  any  of  the  holders  of  the  war^ouse  receipt  the 
goods  were  removed  to  another  warehouse  and  there  destroyed 
by  fire.  In  an  action  to  recover  on  the  warehouse  receipt 
defendant  by  its  answer  admitted  its  receipt  of  the  goods  and 
the  issuance  of  the  warehouse  receipt.  Held,  that  a  separate 
defense  that  defendant  notified  the  one  who  stored  the  goods 
that  it  desired  to  remove  them  from  the  place  described  in  the 
receipt,  and  that  if  defendant  did  not  receive  any  word  of 
objection  to  such  course,  the  transfer  would  be  made,  was 
subject  to  a  demurrer. 

Demubrer  to  defense. 

Hoadly,  Lauterbach  &  Johnson  (Henry  Siegrist,  of 
counsel),  for  plaintiff. 

Max  Sheinart,  for  defendant. 

Newburger,  J.  The  complaint  alleges  that  the 
defendant,  a  domestic  corporation,  operating  a  ware- 
house, received  from  one  Chemical  Importing  and 
Manufacturing  Company  sixty  cases  of  chocolate  for 
storage  in  its  warehouse  at  Nos.  298-301  South 
street,  and  delivered  to  said  chemical  company  a  nego- 
tiable warehouse  receipt.  That  thereafter  said  chem- 
ical company  sold  the  said  merchandise  in  storage  to 
one  McOoldrick  and  indorsed  and  delivered  to  him  the 
said  warehouse  receipt.  That  thereafter  McGoldrick 
sold  the  same  merchandise  to  plaintiff  and  indorsed 
and  delivered  the  said  warehouse  receipt  to  it.  That 
thereafter  the  defendant  notified  plaintiff  that  the 
said  cases  of  chocolate  had  been  removed  to  another 
warehouse  at  No.  237  South  street  and  there  destroyed 
by  fire.  That  neither  the  plaintiff  nor  any  of  the  hold- 
ers of  said  warehouse  receipt  had  consented  to  the 
removal  of  the  goods.  That  plaintiff  presented  said 
warehouse  receipt  to  the  defendant  and  demanded 
delivery  of  said  merchandise  and  offering  to  pay  to 


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180  Childs  Co.,  Inc.,  v.  Reardon,  Inc. 

Supreme  Court,  January,  1921.  [Vol.  114. 

the  defendant  all  its  charges  and  expenses.  The 
answer  admits  the  receipt  of  the  goods,  the  issuance 
of  the  warehouse  receipt,  and  sets  up  as  a  separate  and 
distinct  defense  that  the  defendant  notified  the  chem- 
ical company  that  it  desired  to  remove  the  mer- 
chandise from  the  warehouse  Nos.  298-301  South 
street,  the  place  described  in  the  receipt,  and  that  if 
it  did  not  receive  any  word  from  the  chemical  com- 
pany objecting  to  the  said  transfer  that  said  mer- 
chandise would  be  transferred.  That  receiving  no 
objection,  defendant  made  the  transfer.  That  after 
the  transfer  the  goods  were  destroyed  by  fire  through 
no  fault  of  the  defendant.  The  plaintiff  demurs  to  this 
defense.  The  receipt  states  that  it  is  negotiable  and 
can  be  transferred  by  indorsement  and  the  goods  are 
**in  store  Nos.  298-301  South  street.''  The  contract 
is  clear.  Section  91  of  the  General  Business  Law  pro- 
vides the  form  of  the  warehouse  receipt,  and  among 
other  provisions  it  requires  a  statement  of  *'  location 
of  the  warehouse  where  the  goods  are  stored.''  Sec- 
tion 125  provides:  **A  person  to  whom  a  negotiable 
receipt  has  been  duly  negotiated  acquires  thereby: 
(a)  Such  title  to  the  goods  as  the  person  negotiating 
the  receipt  to  him  had  or  had  ability  to  convey  to  a 
purchaser  in  good  faith  for  value,  and  also  sucli  title 
to  the  goods  as  the  depositor  or  person  to  whose  order 
the  goods  were  to  be  delivered  by  the  terms  of  the  re- 
ceipt had  or  had  ability  to  convey  to  a  purchaser  in 
good  faith  for  value,  and  (b)  The  direct  obligation  of 
the  warehouseman  to  hold  possession  of  the  goods  for 
him  according  to  the  terms  of  the  receipt  as  fully  as  if 
the  warehouseman  had  contracted  directly  with  him.'^ 
The  plaintiff  was  therefore  entitled  to  have  the  con- 
tract carried  out  as  provided  in  the  receipt  It  is  clear 
that  the  provision  in  the  receipt  that  the  goods  were  to 
be  stored  in  Nos.  298-301  South  street  constituted  a 


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GUIDA    V.    PONTRELLI.  181 

Misc.]  Supreme  Court,  January,  1921. 

contract  that  the  goods  were  to  remain  there  and  no 
change  could  be  made  except  by  consent  of  the  holder 
of  the  receipt.  The  answer  fails  to  show  any  notice 
to  or  consent  by  the  plaintiff  to  the  transfer  of  the 
property  to  another  warehouse.  The  demurrer  to  the 
separate  defense  must  be  sustained,  with  costs. 

Demurrer  sustained,  with  costs. 


Savbrio  GuroA,  Plaintiff,  v.  Angelina  D 'Amice  Pon- 
TRBLLi,  Sued  as  Angelina  D 'Amice,  Defendant. 

(Supreme  Court,  Kings  Special  Term,  January,  1921.) 

Contracts  —  when  action  cannot  be  maintained  against  third  per- 
son for  damages  for  breach  of  contract  to  marry  —  pleading 
—  fraud  — when  motion  for  judgment  on  the  pleadings 
granted. 

A  party  to  a  contract  to  marry  cannot  maintain  an  action 
for  general  damages  against  a  parent  or  other  x>er8on  who 
even  maliciously  induces  the  other  party  to  break  the  contract, 
unless  fraud  or  other  tortious  means  be  employed. 

A  demurrer  to  a  complaint  which  alleged  inter  alia  that 
plaintiff  incurred  great  expense  in  anticipation  of  his  marriage 
to  defendant's  daughter  and  had  suffered  damages  in  the  sum  of 
$10,000  by  reason  of  the  deprivation  of  the  companionship, 
society,  love  and  affection  of  his  fiancee,  sustained  with  leave 
to  serve  an  amended  complaint  and  defendant's  motion  for 
judgment  on  the  pleadings  granted. 

Motion  by  defendant  for  judgment  on  the  pleadings. 

Ira  G.  Darrin,  for  defendant,  in  support  of  motion. 

Edward  J.  Reilly,  for  plaintiff,  in  opposition. 

Benedict,  J.     This  is  a  motion  by  defendant  for 
judgment  on  the  pleadings,  consisting  of  complaint 


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182  GUIDA   V.    PONTRELU. 

Supreme  Court,  January,  1921.  [Vol.  114. 

and  demurrer.  The  complaint  alleges  in  substance 
that  plaintiff  and  defendant's  daughter,  with  defend- 
ant's consent,  entered  into  a  contract  to  marry;  that 
they  obtained  a  marriage  license,  defendant  at  the 
time  giving  her  consent  in  writing;  that  afterward 
defendant  maliciously  caused  her  daughter  to  break 
the  contract  and  sent  her  away  to  Italy  prior  to  the 
date  to  which  the  wedding  had  been  postponed,  and 
that  plaintiff  had  incurred  **  great  expense  "  in  antici- 
pation of  the  marriage,  and  was  deprived  of  the 
companionship,  society,  love  and  affection  of  his 
fiancee,  all  to  his  damage  in  the  sum  of  $10,000,  for 
which  sum  judgment  is  demanded.  The  case  thus 
brings  up  the  question  whether  an  action  will  lie  by 
one  party  to  a  contract  to  marry  against  a  third 
person  who  induces  the  other  party  to  break  the 
engagement.  Notwithstanding  that  this  is  a  very 
unusual  question,  counsel  on  both  sides  have  seen  fit 
to  impose  on  the  court  the  labor  of  searching  for 
authorities. 

Before  discussing  the  few  authorities  which  have 
been  found,  it  may  be  worth  while  to  state  the  law 
applicable  generally  to  cases  of  interference  by  a  third 
person  with  the  execution  of  a  contract,  through 
inducing  one  of  the  parties  to  break  it.  The  doctrine 
to  which  our  courts  in  New  York  have  adhered  for 
many  years  is  that  no  action  will  lie  in  such  a  case, 
unless  the  breach  of  the  contract  is  brought  about  by 
fraud  or  other  tortious  act.  Ashley  v.  Dixon,  48  N.  Y. 
430;  Daly  v.  Cornwell,  34  App.  Div.  27;  DeJong  v. 
Behrman  Co.,  148  id.  37;  Turner  v.  Fulcher,  165  N.  Y. 
Supp.  282.  This  doctrine  differs  from  that  recognized 
in  some  other  jurisdictions,  where  it  is  held  that  an 
action  may  be  maintained  for  maliciously  inducing  a 
party  to  a  contract  to  break  it,  without  regard  to  the 
means  employed.     Automobile  Ins.  Co.  v.  Giuiranty 


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GUIDA    V.    PONTRELLI.  183 

Misc.]  Supreme  Court,  January,  1921. 

Securities  Corporation,  240  Fed.  Repr.  222,  225; 
American  Malting  Co.  v.  Keitel,  209  id.  351,  358; 
Wheeler-Stenzel  Co.  v.  American  Window  Glass  Co., 
202  Mass.  471 ;  Booth  v.  Burgess,  72  N.  J.  Eq.  181, 188; 
Temperton  v.  Russell,  (1893)  1  Q.  B.  715. 

Coming  now  to  cases  involving  the  contract  to 
marry,  very  few  have  been  found.  The  only  one  in 
point  is  Leonard  v.  Whitson,  34  Ind.  App.  383,  in 
which  it  was  held  that  an  action  could  not  be  main- 
tained against  the  parents  of  a  young  man,  who 
induced  him  to  break  his  engagement  with  plaintiff 
after  he  had  seduced  her,  and  she  was  with  child  by 
him,  features  which  would  seem  to  make  the  case 
much  stronger  for  the  plaintiff  than  the  present  action. 
It  was  also  held  that  even  if  the  parents  had  made 
false  statements  about  plaintiff  to  induce  the  son  to 
break  the  engagement,  the  action  would  be  for  slander, 
and  the  breach  of  the  contract  only  an  element  of 
damage.  Cooley  is  to  the  same  effect.  1  Cooley  Torts 
(3d  ed.),  494,  '277,  •278.  Harriott  v.  Plimptofi,  166 
Mass.  585,  is  inconclusive.  Wolf  v.  Wolf,  194  App. 
Div.  33,  is  cited  by  defendant,  but  is  of  little  assistance. 
There  the  parties  had  been  married,  both  being  under 
the  age  of  legal  consent,  and  the  parents  of  the  hus- 
band, who  had  not  consented  to  the  marriage,  took 
him  under  their  control  pending  an  action  for  annul- 
ment which  they  had  brought.  In  Quebec  it  has  been 
held  that  a  parent  may  be  liable  in  case  a  minor  child 
wrongfully  breaks  a  contract  to  marry,  even  without 
active  interference  on  the  parent's  part,  but  this  doc- 
trine seems  to  be  based  upon  a  law  of  that  province 
making  a  parent  liable  for  the  torts  of  his  minor  child, 
the  breach  of  promise  being  regarded  as  a  tort.  Inter- 
noscia  v.  Bonelli,  28  Queb.  Super.  58;  Delage  v.  Nor- 
mandcau,  9  Queb.  Q.  B.  93. 

Taking  all  these  authorities  I  can  come  to  no  other 


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184  GUIDA   V.   PONTRELU. 

Supreme  Court,  January,  1921.  [Vol.  114. 

conclusion  than  that  in  this  state  a  party  to  a  con- 
tract to  marry  cannot  maintain  an  action  for  general 
damages  against  a  parent  or  other  person  who  even 
maliciously  induces  the  other  party  to  breach  the 
contract,  unless  fraud  or  other  tortious  means  be 
employed. 

Plaintiff  is  not,  however,  in  my  opinion,  remediless 
so  far  as  the  expenses  incurred  by  him  in  anticipation 
of  the  marriage  were  incurred  in  reliance  upon  the 
defendant's  consent,  and  before  notice  of  the  with- 
drawal thereof,  provided  such  withdrawal. was  with- 
out adequate  reason.  The  age  of  defendant's  daugh- 
ter is  not  alleged,  but  it  is  stated  in  defendant's  memo- 
randum that  she  was  seventeen  at  the  time  defendant 
consented  to  the  marriage;  and  I  assume  that  the 
daughter  was  under  eighteen  at  that  time,  because 
when  the  license  was  issued,  defendant  gave  her  writ- 
ten consent.  See  Dom.  Rel.  Law,  §  15.  But  the  com- 
plaint does  not  contain  appropriate  allegations  to 
enable  plaintiff  to  recover  the  amount  of  such 
expenses,  because  it  does  not  appear  that  they  were 
incurred  in  reliance  upon  defendant's  consent  and 
before  notice  of  its  withdrawal.  I  should  regard  it  as 
also  important  to  allege  the  age  of  the.  daughter,  and 
whether  or  not  her  father  was  living  at  the  time,  and 
if  living  whether  or  not  his  consent  could  be  obtained, 
because  I  think  it  should  appear  that  defendant's  con- 
sent was  legally  necessary  to  obtain  the  license,  and 
that  her  consent  alone  was  sufficient,  in  order  to  give 
plaintiff  the  right  to  rely  thereon  in  making  the 
expenditures  which  he  alleges. 

It  may  be  urged  that,  as  the  daughter  was  an  infant, 
the  contract  to  marry  was  not  binding  upon  her,  and 
hence  that  no  action  can  be  maintained  against  the 
defendant  for  inducing  the  daughter  to  break  it,  even 
to    recover    the    amount    expended    by    plaintiff    in 


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Wood  Mowing  &  Reaping  M.  Co.  v.  Toohey.     185 

Misc.]  Supreme  Court,  January,  1921. 

reliance  npoB  defendant's  consent.  But  the  fact  that 
the  contract  was  not  binding  upon  the  daughter  does 
not  relieve  thiB  defendant  from  liability  in  respect  of 
these  expenditures  under  the  circumstances  above 
mentioned,  if,  but  for  her  interference,  the  marriage 
would  have  taken  place.    Rice  v.  Manley,  66  N.  Y.  82. 

The  conclusion  which  I  have  reached  from  all  the 
above  considerations  is  that  under  the  law  of  this 
state  a  person  who,  without  fraud  or  other  act  amount- 
ing to  a  tort,  induces  a  party  to  a  contract  to  break  it 
is  not  liable  to  the  other  party  for  general  damages, 
but  may  under  peculiar  circumstances  be  liable  for 
special  damages. 

The  defendant's  motion  for  judgment  on  the  plead- 
ings is  granted,  with  ten  dollars  costs,  and  demurrer 
sustained,  with  leave  to  plaintiff  to  serve  an  amended 
complaint  within  twenty  days  on  payment  of  such 
costs. 

Ordered  accordingly. 


Walter  A.  Wood  Mowing  and  Eeaping  Machine  Com- 
pany, Plaintiff,  v.  Thomas  H.  Toohey  et  al., 
Defendants. 

(Supreme  Court,  Rensselaer  Special  Term,  January,  1921.) 

Injunctions  —  when  motion  to  vacate  a  temporary  injunction 
granted  —  labor  unions  —  meaning  of  word  "picketing" — 
damages. 

Employees  on  strike  may  employ  persuasion  and  peaceable 
means  to  keep  non-union  men  from  taking  tbeir  places,  and 
the  fact  that  the  employer  is  irreparably  damaged  as  an  inci- 
dent of  picketing  by  the  strikers  and  that  it  has  no  adequate 
remedy  at  law  does  not  deprive  the  strikers  of  their  legal  right 
to  '^picket/'  providing  there  is  no  malice  and  no  violence. 
(P.  188.) 


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186     Wood  Mowing  &  Eeaping  M.  Co.  v.  ToonRv. 

Supreme  Court,  January,  1921.  [Vol.  114. 

A  motion  to  vacate  a  temporary  injunction  principally 
against  "picketing"  granted  in  an  action  brought  for  a  per- 
maneiit  injunction  against  certain  workmen  of  the  plaintiff,  out 
on  strike,  granted,  with  admonition  to  defendants  that  any 
excesses  or  violence  or  depredations  or  destruction  of  property 
will  result  in  another  injunction,  instant er,     (P.  197.) 

Action  to  obtain  a  permanent  injunction. 

George  E.  Greene  (Alden  Chester,  of  counsel),  for 
plaintiff. 

William  A.  Cahill  (Alvin  E.  Mambert,  of  counsel), 
for  defendants. 

Howard,  J.  This  action  is  brought  to  obtain  a  per- 
manent injunction  against  certain  working  men  who 
are  out  on  a  strike,  and  against  other  persons  who  arc 
not  defendants.  A  sweeping  temporary  injunction, 
principally  against  *'  picketing,"  has  been  obtained 
and  this  is  a  motion  to  modify  or  vacate  it. 

More  than  half  of  the  complaint  is  devoted  to  a  his- 
tory of  the  strike  and  an  attempt  to  establish  that  it 
was  unjustified.  It  may  have  been  unjustified,  but 
that  is  of  no  importance  here  unless  it  was  called  to 
gratify  malice  and  for  the  sole  purpose  of  injuring 
the  plaintiff's  business  or  property.  The  strike  was 
precipitated  by  the  discharge  of  Toohey,  one  of  the 
workmen  in  the  plaintiff's  plant.  The  union  contends 
that  he  was  unjustly  discriminated  against.  The 
plaintiff  denies  this.  If  discrimination  was  the  reason 
why  the  men  went  out  the  strike  was  lawful,  for  a 
labor  union  has  a  right  to  strike  **  to  secure  the 
re-employment  of  a  member  they  regard  as  having 
been  improperly  discharged."  Nat.  Pro.  Assn.  v. 
Cumming,  170  N.  Y.  322.  Workingmen  have  an  abso- 
lute right  to  strike.  That  is  settled  beyond  peradven- 
ture  in  this  state.    They  may  state  their  reasons  or 


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Wood  Mowing  &  Reaping   M.  Co.  v.  Toohey.      187 

Misc.]  Supreme  Court,  January,  1921. 

not,  just  as  they  please;  and  their  reasons,  if  they  do 
state  them,  '^  may  seem  inadequate  to  others,  but  if  it 
seems  to  be  in  their  interest  as  members  of  an  organi- 
zation to  refuse  longer  to  work,  it  is  their  legal  right 
to  stop."    Nat.  Pro.  Assn.  v.  Cumming,  supra. 

And  laboring  men  not  only  have  the  right  to  strike, 
that  is  to  quit  work,  but  they  have  the  right  to  per- 
suade others  to  strike  and  to  attempt  to  persuade 
others  not  to  take  their  places.  In  order  to  do  this 
the  strikers  must,  of  course,  be  permitted  to  talk  to 
their  fellow  workmen  and  to  the  men  who  are  about 
to  take  their  places,  otherwise  there  could  be  no  per- 
suasion ;  for  how  can  one  man  persuade  another  unless 
he  talks  to  him?  The  strikers  must  not,  however, 
resort  to  violence  or  intimidation,  for  the  non-union 
man  has  as  much  right  to  work  as  the  union  man  has 
to  strike.  These  are  axioms.  They  are  principles 
which  have  long  been  inbedded  in  the  law. 

The  strikers  are  accused  of  '*  picketing;"  in  fact 
that  is  the  one  great  grievance  set  forth  in  the  com- 
plaint. But  suppose  they  are  picketing,  what  of  that? 
They  have  as  much  right  to  picket  as  to  strike,  pro- 
viding that  they  do  not  resort  to  threats  or  violence. 
Picketing  simply  means  standing  along  the  highways 
of  approach,  or  near  the  entrances  to  the  plant,  in  time 
of  strike,  for  the  purpose  of  observing  who  is  working 
and  of  attempting  to  persuade  them  to  quit.  Non- 
union laboring  men  have  a  right  to  work  and  to  go  to 
and  come  from  the  shop  unmolested,  and  corporations 
have  a  right  to  employ  them,  and  any  attempt  on  the 
part  of  strikers  to  interfere  with  these  rights  by 
coercion  or  intimidation,  or  by  blockading  the  roads, 
or  by  compelling  the  non-union  men  to  run  the  gaunt- 
let, is  unlawful ;  but  I  find  nothing  here  which  amounts 
to  any  such  condition.  A  few  sporadic  instances  of 
indiscreet  language  and  of  vulgarity  are  pointed  out. 


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188     Wood  Mowing  &  Reaping  M.  Co.  v.  Toohey, 

Supreme  Court,  January,  1921.  [Vol.  114. 

but  the  plaintiff's  aflBdavits  show  that  the  non-union 
men  were  in  no  manner  frightened  or  cowed  by  this, 
notwithstanding  that  many  of  them  claim  to  have 
been  put  in  fear,  and  that  in  most  cases  they  displayed 
a  courage  and  defiance  and  employed  language  which 
fully  matched  the  temper  and  talk  of  the  strikers.  It 
is  the  law  of  this  state,  so  far  as  the  question  has  been 
settled,  that  strikers  may  employ  persuasion  and 
peaceable  means  to  keep  non-union  men  from  taking 
their  places ;  and  the  fact  that  the  plaintiff  is  irrepara- 
bly damaged,  as  an  incident  of  the  picketing,  and  that 
it  has  no  adequate  remedy  at  law,  does  not' deprive  the 
defendants  of  the  right  to  picket,  providing  there  is  no 
malice  and  no  violence. 

This  rule,  which  must,  I  believe,  at  last  everywhere 
prevail,  has  just  recently^  been  firmly  planted  in  the 
statutes  of  the  United  States.  In  other  words  pick- 
eting has  been  legalized  by  congress.  The  right  to 
picket  is,  therefore,  no  longer  a  debatable  question  in 
the  Federal  jurisdiction.  The  Clayton  Act,  so-called, 
enacted  October  15,  1914,  provides  that  no  injunction 
order  '*  shall  prohibit  any  person  or  persons,  whether 
singly  or  in  concert,  from  •  •  •  ceasing  to  per- 
form any  work  or  labor,  or  from  recommending,  advis- 
ing, or  persuading  others  by  peaceful  means  so  to  do ; 
or  from  attending  at  any  place  where  any  such  person 
or  persons  may  lawfully  be  for  the  purpose  •  •  • 
of  peaceably  persuading  any  person  to  work  or  to 
abstain  from  working;  •  •  •  nor  shall  any  of  the 
acts  specified  in  this  paragraph  be  considered  or  held 
to  be  violations  of  any  law  of  the  United  States. '' 

Thus  we  find  the  right  to  *'  picket  "  definitely  sanc- 
tioned and  rooted  in  the  statute  laws  of  the  Federal 
government.  This  enactment  does  not,  of  course,  con- 
trol the  courts  of  the  state  of  New  York,  in  a  case  of 
this  character,  but  it  does  put  into  Federal  statutory 


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Wood  Mowing  &  Reaping  M.  Co.  v.  Toohey.     189 

Misc.]  Supreme  Court,  January,  1921. 

form  the  law  of  this  state  as  propounded  by  its  ablest 
jurists.  It  also  sweeps  away  completely,  from  consid- 
eration here,  all  that  has  been  previously  written  by 
the  Federal  courts  in  opposition  to  picketing,  includ- 
ing Atchison,  T.  S  S.  F.  Ry.  Co.  v.  Gee,  139  Fed.  Eepr. 
582,  cited  by  the  plaintiff.  And  not  only  that,  but  it 
sets  forth  in  bold  certain  statutory  language,  the  trend 
of  modern  thought  against  injunctions  in  labor  dis- 
putes. The  Clayton  Act  has  in  no  degree  been  devital- 
ized, as  between  the  **  employer  and  the  employees,** 
by  the  decision  of  the  Supreme  Court  of  the  United 
States  in  Duplex  Printing  Press  Co.  v.  Deering,  handed 
down  January  3,  1921.  That  case  went  off  on  another 
theory. 

Judge  Andrews,  now  on  the  Court  of  Appeals,  sit- 
ting then  at  Special  Term,  in  a  well-considered  opin- 
ion, the  best  I  have  read  on  the  subject,  correctly  sets 
forth  the  law  of  this  state  on  picketing.  He  said: 
**  Mere  picketing,  therefore,  if  it  is  peaceful,  if  there 
is  no  threat  or  intimidation,  if  it  is  confined  to  simple 
persuasion,  I  do  not  regard  in  any  sense  as  unlawful, 
whatever  may  be  the  motive  of  the  picketers.'*  Foster 
V.  Retail  Clerks*  Protective  Assn.,  39  Misc.  Eep.  48, 
57.  This  is  sound,  _Itis  just^  It  is  the  law.  It  must 
forever  remain  the  law  until,  liberty .J?l.spee_chjee^^ 
to  be  a  human  right. 

""^Tfptheu,  it  la  The  law  in  this  state  that  strikers  on 
picket  duty  may  use  **  persuasion,**  what  is  persua- 
sion? What  language  is  permitted?  What  is  prohib- 
ited? The  nomenclature  of  the  strike  is  not  the  lan- 
guage of  the  parlor.  Men  become  earnest  and  excited 
and  vigorous  at  such  times.  A  vital  principle  is  at 
stake.  It  is  not  within  the  limits  of  human  nature  to 
remain  calm  and  gentle  under  such  circumstances. 
The  fervor  of  argument  is  upon  them;  the  stimulus 
of  battle.    They  forget  etiquette  and  grammar.    They 


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190     Wood  Mowing  &  Reaping  M.  Co.  v.  Toohby. 

Supreme  Court,  January,  1921.  [Vol.  114. 

employ  strong  language.  Sometimes  they  go  beyond 
the  borders  of  decorum.  But  so  do  men  in  all  walks 
of  life.  Instigated  by  emotion  and  impelled  by  deep 
conviction  men  always  employ  strong  words.  This 
happens  during  political  campaigns,  and  on  election 
day,  and  even  in  the  court  room  while  lawyers  are 
addressing  the  bench.  Men  gesticulate,  on  such  occa- 
sions, and  become  excited  and  demonstrative. 

Must  laboring  men  be  held  down  to  a  more  stringent 
rule?  Must  they  be  under  constant  restraint?  Are 
they  forced  to  be  placid  in  the  hour  of  contention? 
It  is  well,  perhaps,  to  be  so,  but  does  the  law  demand 
it?  I  think  not.  Strikers  may  talk  in  their  own  lan- 
guage ;  the  plain,  common,  strong,  everyday  language 
of  the  laboring  man. 

'*A  peaceable  and  orderly  strike  •  *  *  is  not  a 
violation  of  law."  Nat.  Pro.  Assn.  v.  Cumming,  supra. 
The  plaintiff  contends,  however,  in  addition  to  the 
alleged  illegal  picketing  of  which  it  complains,  that 
this  strike  is  not  peaceable  and  orderly,  but  violent, 
disorderly  and  criminal.    Let  us  see. 

Stripped  of  its  verbiage,  generalities  and  conclu- 
sions, the  complaint  seems  remarkably  barren.  The 
pleading  and  aflBwiavits  show  that  the  word  '*  scab  " 
has  been  used  three  times,  I  think,  and  there  has  been 
some  profanity  and  some  vulgarity,  and  there  are  two 
or  three  expressions  which  might  be  construed  into 
threats.  Otherwise  there  is  nothing,  barring  the  alle- 
gations which  in  no  wise  appertain  to  the  defendants, 
and  to  which  I  shall  refer  later.  Not  one  act  of  vio- 
lence or  disorder  has  been  traced  to  the  door  of  any 
defendant;  not  an  assault,  not  an  arrest,  not  a  shot, 
not  a  blow,  not  a  menace. 

Much  importance  is  attached  to  the  fact,  if  it  be  a 
fact,  that  some  of  the  defendants  on  a  few  occasions 
used  the  word  *'  scab."    I  cannot  feel  myself  shocked 


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Wood  Mowjng  &  Reaping  M.  Co.  v,  Toohky.      191 

Misc.]  Supreme  Court,  January,  1921. 

by  that  word.  The  law,  although,  perhaps,  deprecating 
its  use,  is  not  so  sensitive  as  to  be  outraged  by  it. 
The  word  is  coarse  and  offensive,  to  be  sure,  but  it 
carries  with  it  no  import  of  infamy  or  crime.  Its 
meaning  is  perfectly  well  known  and  its  use  is  very 
common.  Webster  gives  this  definition  of  the  word: 
*'A  working  man  who  works  for  lower  wages  than,  or 
under  conditions  contrary  to,  those  prescribed  by  the 
trade  union ;  also,  one  who  takes  the  place  of  a  work- 
ing man  on  a  strike."  This  definition  embraces  no 
thought  of  violenco,  no  infraction  of  the  law,  no  threat, 
no  menace.  Why  should  this  word  be  especially 
tabooed?  It  is  offensive,  beyond  question,  and  per- 
haps opprobrious.  It  would  be  better  un&aid,  but  why 
should  the  court  enjoin  the  strikers  from  using  this 
particular  word,  or  enjoin  them  from  anything 
because  they  have  used  it?  There  is  no  reason,  as  I 
comprehend  the  rules  of  equity. 

The  plaintiff  points  out  certain  expressions  of  the 
defendants  which  it  construes  into  threats.  Such  a 
construction  is  too  far-fetched  to  warrant  the  court  in 
concurring  with  the  plaintiff.  These  alleged  threats 
are  so  vague  in  character  and  of  such  insignificance, 
in  my  estimation,  that  I  shall  pass  over  them  all, 
except  one,  without  comment. 

The  one  I  have  in  mind  is  this.  During  the  progress 
of  the  strike  a  barn  was  burned.  It  was  owned  by  one 
of  the  men  who  had  continued  to  work  in  spite  of  the 
remonstrance  of  the  strikers.  No  attempt  is  made  to 
show  that  the  fire  was  incendiary,  and  not  even  the 
finger  of  suspicion  is  pointed  at  any  striker,  except 
that  previous  to  the  fire  one  of  the  defendants  is 
alleged  to  have  said  to  the  owner  of  the  barn,  *'  If  you 
go  to  work  you  will  be  sorry,  but  it  will  be  too  late.'* 
The  striker  vigorously  denies  that  he  ever  had  any 
such  conversation  with  the  man;  but  assume  that  he 


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192     TVooD  Mowing  &  Reaping  M.  Co.  v.  Toohey. 

Supreme  Court,  January,  1921.  [Vol.  114. 

did,  can  we  fairly  spell  out  of  these  words  a  threat 
to  bum  the  man^s  barn,  or  any  other  threat!  It  is 
nearly  whimsical  to  attempt  to  import  a  sinister  mean- 
ing to  these  words.  This  would  be  a  flimsy  foundation 
indeed  for  injunction. 

Passing  over  these  trivial  features  of  the  plaintiff's 
papers  we  come  to  the  one  central  event  relied  upon 
by  the  plaintiff,  and  set  forth  in  the  complaint  and 
repeated  in  the  affidavits.  It  is  the  alleged  assault 
upon  the  night  fireman,  coupled,  the  same  evening, 
with  the  attempt  to  shoot  the  general  superintendent. 
These  events  demand  particular  consideration,  be- 
cause without  them  the  plaintiff's  papers  become 
nearly  frivolous. 

The  plaintiff's  night  fireman  alleges  that  on  the 
night  of  November  12, 1920,  he  was  assaulted.  Nobody 
saw  it,  nobody  corroborates  the  fireman's  statement 
except  that  blood  and  bruises  were  seen  on  his  head 
and  face  by  others.  His  wounds  were  examined  and 
described  by  Dr.  Shaw,  so  that  there  can  be  no  doubt 
that  he  was  hurt  in  some  manner.  But  assuming  that 
the  fireman  told  the  exact  truth  about  it  all,  how  does 
that  impugn  the  conduct  of  these  defendants!  How 
is  the  incident  relevant  here!  The  assailants  are 
unknown.  The  fireman  could  not  identify  them.  It 
may  be  assumed  that  he  knew  most  of  the  strikers,  at 
least  by  sight,  yet  the  men  who  assaulted  him  were 
strangers  to  him.  The  defendants  indignantly  deny 
any  complicity  in  the  assault  or  knowledge  of  it.  To 
charge  this  atrocity  against  them  without  proof  would 
be  monstrous.  Not  a  rule  ever  known  in  law  or  equity 
would  sanction  it.  The  incident  is  wholly  alien  to  this 
ease. 

On  the  same  evening  George  N.  Allen,  the  plaintiff's 
general  superintendent,  claims  to  have  been  fired 
upon.    Nobody  saw  this  assault  although  other  people 


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Wood  Mowing  &  Reaping  M.  Co.  v.  Toohey.     193 

Misc.]  Supreme  Court,  January,  1921. 

heard  the  shots.  Four  bullets  were  fired  at  the  super- 
intendent and  immediately  thereafter  Allen  showed 
people  his  hat  through  which  a  bullet  had  ploughed 
its  way.  But  the  would-be  assassins  are  unknown. 
Not  a  fragment  of  evidence  points  towards  the  defend- 
ants. There  is  no  nexus  between  the  strikers  and  the 
felons.  Nothing  connects  the  defendants  in  any  man- 
ner with  this  dastardly  deed.  They  are  strangers  to 
the  outrage.  It  is  true  that  the  event  happened  during 
the  progress  of  the  strike,  but  are  workingmen  on  a 
strike  to  be  charged  without  rhyme  or  reason  with 
every  crime  committed  in  the  neighborhood?  If  not, 
then  how  is  the  incident  relevant  here!  Counsel 
cannot  seriously  urge  this  unidentified  felony  as  a 
basis  for  injunction.  Who  is  to  be  enjoined?  Not 
innocent  men,  surely ;  not  men  against  whom  there  is 
no  evidence  whatever,  either  of  knowledge  or  com- 
plicity. Therefore,  even  if  the  event  be  taken  as  true, 
it  counts  for  nothing  here. 

But  the  story  cannot  be  accepted  too  implicitly  by 
the  court.  Allen  *8  testimony  has  been  seriously 
shaken.  He  is  arraigned  as  an  impostor.  It  is  charged 
that  in  West  Virginia,  in  1912,  Allen  enacted  a 
spurious  scene  quite  similar  to  this.  There  he  claimed 
to  have  been  assaulted,  robbed,  gagged  and  bound  by 
footpads.  Afterwards  he  signed  a  written  confession, 
so  the  defendants  allege,  admitting  that  he  had  bound 
and  gagged  himself  and  **  faked  '*  the  holdup.  These 
grave  charges  against  Allen  are  presented  to  the 
court,  not  by  mere  nondescripts,  but  by  the  aflBdavits 
of  three  public  officials  of  Wheeling,  West  Virginia, 
and  by  a  member  of  the  bar  of  that  city.  One  of  these 
men  is  now  sheriff  of  the  county,  one  is  a  deputy 
sheriff  and  one  is  a  member  6f  the  "  plain  clothes 
squad."  At  the  time  of  the  alleged  holdup  they  each 
held  office;  one  was  the  prosecuting  attorney,  one  was 

la 


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194     Wood  Mowing  &  Reaping  M.  Co.  v.  Toohey. 

Supreme  Court,  January,  1921.  [Vol.  114. 

chief  of  police,  one  was  a  city  detective  and  the  other 
was  a  police  officer,  and  they  were  the  officials  in 
charge  of  the  prosecution  of  the  supposed  highway- 
men. These  men  are  trusted,  experienced  public 
servants  and  seem  worthy  of  belief. 

And  the  story  is  vouched  for  to  some  degree  by  the 
affidavit  of  Allen  himself.  It  is  true  that  he  still 
insists  that  he  **  was  actually  assaulted  and  waylaid 
and  seriously  injured,**  but  he  admits  that  he  was 
suspected  of  having  framed  up  the  robbery  and  that 
two  detectives  '*  put  him  through  the  third  degree," 
and  read  a  written  statement  over  to  him.  And  he 
does  not  dispute  that  the  statement  contained  the  mat- 
ter set  forth  by  the  Wheeling  officials  but  he  says  that 
he  is  now  unable  to  recollect  what  it  contained,  and  he 
seems  to  account  for  this  failure  of  memory  by  saying 
that  the  detectives  **  grilled  him  until  he  hardly  knew 
what  he  was  about.*' 

Equity  requires  those  who  seek  equity  to  come  into 
court  with  clean  hands,  but  if  this  Wheeling  story  be 
true,  Allen 's  hands  are  soiled  nearly  beyond  purifica- 
tion. If  the  testimony  of  these  accredited  public  offi- 
cials of  West  Virginia  is  to  be  accepted,  it  utterly 
destroys  the  evidence  of  Allen  and  taints  the  plaintiff 's 
whole  case  with  fraud  and  imposition.  This  expres- 
sion, however,  is  not  intended  in  any  manner  to  reflect 
upon  the  plaintiff's  attorneys.  They  are  men  of  the 
highest  standing  in  their  profession  and  I  assume  that 
they  knew  nothing  whatever  of  Allen's  previous  his- 
tory and  nothing  concerning  the  West  Virginia 
episode  until  it  was  divulged  by  the  defendants' 
affidavits. 

The  plaintiff's  superintendent  does  not  rest  supine 
under  this  attack  upon  his  character.  In  addition  to 
his  own  vigorous  denial  he  has  presented  an  affidavit 
which  shows  that  the  records  of  the  Ohio  Valley  Gen- 


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Wood  Mowing  &  Reaping  M.  Co.  v.  Toohby.     195 

Misc.]  Supreme  Court,  January,  1921. 

eral  Hospital  indicate  that  he  was  in  fact  a  patient 
at  that  institution  from  January  10,  1912,  the  date  of 
the  alleged  holdup,  to  January  15,  1912.  He  has  also 
presented  evidence  from  the  Chase  Motor  Truck  Com- 
pany, and  from  Aurin  A.  Chase,  its  president,  and 
from  Carleton  A.  Chase,  president  of  the  Fire  Trust 
and  Deposit  Company,  that  he  is  a  man  of  capacity, 
character  and  integrity.  These  certificates  of  char- 
acter show  that  the  Chases,  at  least,  reposed,  and  do 
now  repose,  full  faith  and  confidence  in  Allen.  Thus 
a  question  is  presented  as  to  the  credibility  of  the 
plaintiff  *s  general  superintendent. 

It  is  not,  however,  necessary  to  pass  upon  the  ques- 
tion here,  or  to  hold  that  Allen  is  an  impostor.  Accept- 
ing all  that  he  says  as  true  his  story  reflects  in  no 
manner  upon  the  strikers.  It  is  wholly  irrelevant  to 
this  controversy;  an  utter  nullity.  Therefore  it  must 
be  disregarded. 

Eliminating  then  the  attacks  upon  the  night  fireman 
and  the  superintendent,  what  is  left?  Without  these 
the  strike  has  been  uncommonly  orderly  and  tem- 
perate —  almost  tame.  This  impression  is  particularly 
confirmed  by  the  affidavit  of  Corporal  Harold  C.  Her- 
rick,  the  officer  in  command  of  the  state  troopers  called 
to  Hoosick  Falls  for  the  very  purpose  of  watching  the 
strikers  and  preserving  order.  After  giving  his 
observations  in  some  detail  he  concludes  by  saying 
*'  that  the  general  conduct  of  the  strikers  at  all  times 
during  said  period  (twelve  days)  was  beyond  criti- 
cism." The  station  agent  of  the  Boston  and  Maine 
Railroad,  and  the  baggage  master,  and  a  newspaper 
reporter,  all  disinterested  spectators,  concur  with  Cor- 
poral Herrick  in  commending  the  quiet,  orderly  aspect 
of  the  strike. 

Denuded  of  all  impertinent  matter,  therefore,  and 
reduced  to  a  sediment^  the  charge  against  the  working- 


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196     Wood  Mowing  &  Reaping  M.  Co.  v.  Toohbt. 

Supreme  Court,  January,  1921.  [Vol.  114. 

men  is  this:  They  have  gone  on  a  strike  and  have 
resorted  to  picketing;  that  is,  they  have  been  trying 
to  persuade  others  not  to  take  their  places.  This  is 
the  **  head  and  front  of  their  offending.*'  This  is  not 
-  enough. 

It  is  urged  that  the  injunction  will  do  no  harm 
because  the  defendants  are  to  be  restrained  only  from 
doing  unlawful  acts  and  perpetrating  crime.  But  the 
citizen  cannot  be  restrained  from  doing  an  unlawful 
act  until  there  is  evidence  that  he  intends  to  do  such 
an  act.  It  casts  opprobrium  upon  a  person  to  assume 
that  he  will  commit  crime.  And,  in  any  event,  equity 
has  no  criminal  jurisdiction.  An  injunction  order  is 
no  menace  to  criminals.  Felons  cannot  be  deterred 
from  crime  by  injunction.  The  Penal  Law  is  a  stand- 
ing injunction  against  crime.  The  penalties  for  crime 
are  tenfold  more  severe  than  the  chastisement  for  con- 
tempt of  court.  If  the  defendants  are  committing 
crime,  the  quick,  summary,  regular  remedy  is  arrest 
and  prosecution. 

Many  publicists  and  some  jurists  have  taken  the 
position  that  injunctions  ought  never  to  issue  in  labor 
disputes.  The  congress  of  the  United  States  has 
nearly  said  that.  I  should  not  want  to  go  quite  to  that 
length.  Lawlessness  and  violence  ought,  perhaps,  in 
an  extreme  case,  to  be  restrained  by  injunction,  but  the 
courts  should  not  carelessly  cast  the  weight  of  their 
mandates  into  the  strife  between  employers  and 
employees. 

In  an  evenly  balanced,  bitter,  long  drawn  out  labor 
struggle,  an  edict  of  the  court,  leveled  at  the  strikers, 
shakes  the  morale  of  the  workingmen.  This  is  not  the 
purpose  of  an  injunction,  although  it  is  frequently, 
and  perhaps  generally,  the  purpose  of  the  employer 
who  seeks  it.  The  function  of  an  injunction  order  in 
a  labor  dispute  is  to  restrain  lawlessness,  when  there 
is  lawlessness,  and  when  this  is  likely  to  cause  irre- 


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Wood  Mowing  &  Reaping  M.  Co.  v.  Toohby.     197 

Misc.]  Supreme  Court,  January,  1921. 

imrable  damage.  When  there  is  no  lawlessness^  and 
no  proper  grounds  to  apprehend  it,  there  should  be  no 
injunction.  The  courts  do  not  take  sides  in  this  cease- 
less struggle  between  capital  and  labor.  They  stand 
indifferent.  They  intervene  only  when  the  law  is 
trampled  upon.  They  interpose  the  arm  of  authority 
only  to  restrain  those  who  invade  the  rights  of  others. 

The  moral  effect  of  an  injunction  order  in  such  cases 
is  tremendous.  At  once  it  gives  the  impression  in  the 
community  that  the  strikers  have  violated  the  law. 
The  court  seems  to  have  taken  a  hand  in  the  struggle. 
This  is  the  laymen's  vijBW.  The  injunction,  thus  shap- 
ing public  opinion,  is  often  decisive. 

In  exercising  its  discretion  the  court  cannot  shut  its 
eyes  to  this  aspect  of  the  case  or  ignore  the  far-reach- 
ing psychic  effect  of  its  mandate.  Therefore,  if  equity 
is  to  be  done,  the  greatest  caution  should  be  observed 
in  issuing  injunctions  in  strikes.  There  should  be 
grave  provocation.  Strained  constructions  of  the 
words  employed  by  strikers  is  not  enough.  Surmise 
and  suspicion  are  not  sufficient.  Unusual  vigor  of 
speech  among  the  strikers,  now  and  then,  or  grou 
of  laborers  assembled,  here  and  there,  will  not  su 
Injunctions  cannot  rest  in  such  grave  controver'sies 
upon  such  trivial  foundations.  And  of  coursie  it  is 
idle  to  contend  that  the  depredations  of  unidentified 
miscreants,  or  the  crimes  of  unknown  criminals,  can 
move  a  court  of  equity  to  issue  an  injunction  in  any 
case  against  any  citizen. 

In  view  of  this  reasoning  I  have  concluded  that  the 
injunction  order  should  be  vacated  in  every  particular; 
but  I  think  I  ought  to  add  that  the  defendants  should 
not  construe  this  as  a  grant  of  license  to  them.  Any 
excesses  or  violence  or  depredations  or  destruction 
of  property  will  result  instantly  in  another  injunction. 

Ordered  accordingly. 

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198  Kemmsugk  v.  Kemmbiigk. 

Supreme  Court,  Jannary,  192L  [Vol.  114. 


Josephine  ElEMmeuck,  a  Lxuiaticy  by  Edwabd  Gt. 
KoREK,  Appointed  next  Friend  of  Said  Josephine 
E^MMELiOEy  a  Lunatic,  Plaintiff,  v.  Louis  Ejbmme- 
UGE,  Defendant. 

(Supreme  Court,  Erie  Special  Term,  January,  1921.) 

AetioBB  —  when  may  not  be  maintained  by  alleged  "next 
friend  "  of  a  lunatic — marriage  —  default — evidence — 
partiea  — Oode  Oiv.  Pro.  §  1748. 

An  action  by  the  ''next  friend"  of  a  lunatic  as  permitted 
by  section  1748  of  the  Code  of  Civil  Procedure,  i^ould  be 
brought  and  prosecuted  in  the  name  of  the  ''  next  friend  "  and 
not  in  the  name  of  the  lunatic.     (P.  200.) 

Upon  a  petition  setting  forth  the  alleged  insanity  of  a  wife 
an  order  was  made  and  entered  appointing  petitioner  as 
''next  friend"  for  the  purpose  of  maintaining  an  action  for 
the  annulment  of  the  marriage  of  plaintiff  to  defendant.  Upon 
application  for  judgment  as  by  default  it  appeared  in  answer 
to  questions  asked  by  the  court,  that  the  petition  was  pre- 
sented and  the  action  brought  at  the  request  of  defendant 
and  that  instead  of  being  the  ''next  friend"  of  the  wife,  the 
plaintiff  all  the  time  had  been  acting  as  the  ''next"  and  best 
friend  of  the  defendant.  Held,  that  the  application  for  judg- 
ment should  be  denied.     (P.  199.) 

Where,  notwithstanding  queer  and  peculiar  acts  on  the  part 
of  the  wife  shortly  after  the  marriage,  it  appears  that  they 
lived  together  for  four  years  before  she  was  declared  insane, 
and  had  two  children,  and  the  evidence  does  not  justify  a 
finding  that  she  did  not  at  the  time  of  the  marriage  understand 
the  nature,  effect  and  consequences  thereof,  the  annulment  will 
be  denied  even  though  all  other  reasons  for  rejecting  the 
application  for  judgment  should  fail.     (P.  202.) 

The  order  in  this  case  "  that  an  action  may  be  maintained  " 
by  plaintiff  as  "next  friend"  did  not  authorize  the  bringing 
of  the  action  by  him  without  making  the  wife  a  party  defendant 
(P.  201.) 

AonoN  for  the  annulment  of  a  marriage. 


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Kemmeugk  v.  E^emmeugk*  199 

Misc.]  Supreme  Courts  January,  1921. 

Wheeleb,  J,  This  action  is  brought  to  animl  the 
marriage  between  the  plaintiff  and  the  defendant  on 
the  alleged  ground  that  at  the  time  the  marriage  took 
plaoe  in  November,  1908,  the  plaintiff  was  a  lunatic, 
and  her  insanity  is  incurable. 

On  the  17th  day  of  December,  1920,  Edward  Gt. 
Koren  presented  a  petition  to  this  court  setting  forth 
the  alleged  insanity  of  the  plaintlT,  and  asking  that 
an  order  be  granted  appointing  him  as  next  friend  of 
the  plaintiff  **  for  purpose  of  maintaining  this  action 
for  the  annulment  of  the  marriage,  pursuant  to  sec- 
tions 1747  and  1748  of  the  Code  of  Civil  Procedure/' 
On  this  petition  an  order  was  made  and  entered  pro- 
viding **  that  an  action  may  be  maintained  by  Edward 
G.  Koren  as  next  friend  of  Josephine  Kenamelick '' 
for  the  anulment  here  asked. 

Thereupon  this  action  was  brought  in  the  form 
indicated  in  the  caption  to  the  action.  No  answer  was 
interposed  by  the  defendant,  and  the  plaintiff  then 
proceeded  before  this  court  to  give  evidence  for  the 
purpose  of  obtaining  judgment  asked  as  by  default. 

The  proceeding  was  so  unusual  that  the  court 
proceeded  to  ai^k  questions  for  itself,  on  the  hearing. 

It  then  developed  that  Koren,  the  so-called  next 
friend  of  the  plaintiff,  presented  the  petition  and 
brought  this  action  at  the  request  of  the  defendant 
himself.  The  defendant  on  the  witness  stand  testified 
to  the  same  thing.  It  thus  appears  that  instead  of 
being  the  **next  friend*'  of  the  plaintiff  Koren  all 
the  time  in  fact  has  been  acting  as  the  **  next  *'  and 
best  friend  of  the  defendant,  and  without  seriously 
considering  the  real  and  true  interests  of  the  plaintiff. 

Under  these  circumstances  this  court  ought  not  to 
grant  the  annulment  asked. 

The  case  of  Reed  v.  Reed,  106  Misc.  Rep.  85,  holds 
that  an  action  to  annul  a  marriage  on  the  ground  of 


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200  Kemmeuge  v.  Kemmeiigk. 

Supreme  Court,  Jannary,  1921.  [Vol.  114. 

the  insanity  of  a  party  to  it  can  only  be  maintained 
by  the  lunatic,  and  cannot  be  maintained  by  the  other 
party  to  it. 

In  that  opinion  Mr.  Justice  Hinman  discusses  the 
proper  construction  to  be  placed  on  the  various  sec- 
tions of  the  Code  of  Civil  Procedure  relating  to  such 
actions,  and  reaches  the  conclusion  stated  above. 

It  was  to  avoid  the  force  and  effect  of  this  decision 
that  the  defendant  in  this  action  undertook  to  get 
around  his  own  disqualification  to  bring  an  action  for 
annulment  by  procuring  the  action  to  be  prosecuted 
against  himself  by  an  alleged  **  next  **  friend.  We 
do  not  think  the  court  should  tolerate  this  practice. 
We  are  unable  to  discover  how  the  interests  of  the 
plaintiff  can  be  advanced  in  any  way  by  an  annulment 
of  the  marriage.  On  the  other  hand  we  can  well  see 
how  the  interests  of  the  alleged  defendant  may  be 
served  by  such  an  annulment,  which  would  relieve 
him  of  the  duties  and  obligations  of  a  husband  to  the 
xmfortunate  plaintiff. 

On  principles  of  justice  and  equity  we  think  the 
court  should  not  permit  itself  to  be  used  for  any  such 
purpose. 

Independent  of  these  considerations  we  are  of  the 
opinion  the  action  is  not  well  brought. 

We  are  of  the  opinion  that  if  an  action  is  to  be 
brought  by  the  **  next  friend  **  of  a  lunatic,  as  per- 
mitted by  section  1748  of  the  Code  of  Civil  Procedure, 
the  action  should  be  brought  and  prosecuted  in  the 
name  of  the  **next'*  friend,  for  the  purpose  named, 
and  not  in  the  name  of  the  lunatic. 

This,  indeed,  seems  to  be  the  practice  pursued  in 
other  cases.  Coddington  v.  Lamer,  75  App.  Div.  532; 
Meekins  v.  Kvnsella,  152  id.  32;  Anderson  v.  HickSj 
150  id.  289. 

jSo  too  in  actions  brought  by  a  parent,  pursuant  to 


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KeMMELJCK   v.   KjlMMEliC^.  201 

Midc.]  Supreme  Court,  January,  1921. 

section  1744  of  the  Code,  to  annul  the  marriage  of  a 
child  on  the  ground  such  child  had  not  reached  the 
age  of  legal  consent.    Fero  v.  Fero,  62  App.  Div.  470. 

In  such  an  action  where  the  action  is  prosecuted  by 
the  *'  next  friend  *'  of  the  lunatic  the  lunatic  becomes 
a  necessary  party  defendant,  and  the  case  cannot  pro- 
ceed without  such  lunatic  being  brought  into  court. 
Coddington  v.  Lamer,  75  App.  Div.  293;  Anderson  v. 
Hicks,  150  id.  293. 

In  the  latter  case  the  court  said:  ^^ But  the  plain- 
tiff suing  as  a  relative  does  not  stand  in  the  shoes  of 
the  alleged  lunatic  as  to  represent  him  hy  substitu- 
tion.'- Neither  does  the  ''  next  friend  "  represent  the 
lunatic  so  *^  as  to  represent  her  hy  substitution.'' 

The  order  of  the  court  permitting  an  action  to  be 
brought  is  nothing  more  than  permission  to  sue.  The 
insane  and  infants  are  in  a  sense  regarded  as  the 
wards  of  the  court  and  permission  to  bring  suit 
fiiimply  authorizes  suit  brought  in  the  proper  way  with 
the  proper  defendants,  and  to  reach  the  case  in  hand 
included  the  lunatic  as  a  party  defendant.  The  order 
made  may  be  likened  to  one  permitting  a  party  to  sue 
a  receiver  appointed  by  the  court. 

The  same  rule  requiring  the  lunatic  to  be  made 
defendant  has  been  repeatedly  held  to  be  the  law  in 
cases  where  a  parent  brings  an  action  to  annul  a 
marriage  made  by  the  child  before  reaefhing  the  age  of 
consent.  Fero  v.  FerOy  62  App.  Div.  470;  Wood  v. 
Baker,  43  Misc.  Rep.  310. 

An  examination  of  the  order  made  permitting  action 
to  be  brought  to  annul  the  marriage  in  this  case  in  no 
way  departed  from  the  rule.  It  was  an  order  '*  that  an 
action  may  be  maintained  by  Edward  G.  Koren  as 
next  friend.^'  It  did  not  authorize  the  action  to  be 
brought  in  the  name  of  the  plaintiff  without  making 
the  insane  person  a  party  defendant 


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202  Kemmblioe  v.  Kemmelice. 

Supreme  Court,  January,  1921.  [Vol:  114. 

To  grant  an  annulment  in  this  case  wonld  be  to  dis- 
pense with  the  safeguards  which  the  law  throws 
around  judicial  proceedings  for  the  protection  of  the 
helpless  and  incompetent. 

It  might  be  further  said  that  in  our  judgment  the 
proof  fails  to  make  out  a  satisfactory  case  even  though 
all  the  other  reasons  for  rejecting  the  application  for 
judgment  should  fail.  Mere  insane  delusions  or 
hallucinations  are  not  sufficient  in  and  of  themselves 
to  annul  a  marriage,  but  before  such  a  contract  can  be 
(»tncelled  on  the  ground  of  lunacy  or  for  want  of 
understanding  it  must  be  satisfactorily  shown  that  the 
party  in  whose  interest  or  right  the  action  is  brought 
was  mentally  incapable  of  understanding  the  nature, 
effect  and  consequences  of  the  marriage.  Meekins  v. 
Kinsella,  152  App.  Div.  36,  and  cases  cited. 

I  do  not  think  the  evidence  establishes  such  a  ca^. 
It  is  true  certain  queer  and  peculiar  acts  on  the  part  of 
the  wife  are  testified  shortly  after  the  marriage  to  the 
defendant,  but  they  lived  together  for  some  four  years 
after  the  marriage  before  she  was  declared  insane. 
She  bore  him  two  children,  and  I  do  not  think  the 
evidence  adduced  would  justify  the  court  in  finding  the 
wife  did  not  at  the  time  of  her  marriage  understand 
the  nature,  effect  and  consequences  of  the  marriage. 

For  these  reasons  the  application  for  judgment  must 
be  denied. 

Application  denied. 


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Matter  of  Cutler.  203 

Mise.]    Smrogate'B  Court,  Queens  County,  January,  1921. 


Matter  of  Proving  the  Last  Will  and  Testament  of 
Lillian  Yonosk  Cutler,  Deceafled,  as  a  Will  of  Beal 
and  Personal  Property. 

(Surrogate's  Court,  Queens  County,  January,  1921.) 

Wins  — when  probate  decreed  — husband  and  wife  — Decedent 
Estate  Law,  §  85. 

Upon  the  death  of  a  wife  in  this  state,  her  last  will  and 
testament,  executed  in  another  state  while  she  was  unmarried, 
may  be  admitted  to  probate  in  this  state,  under  section  35  of 
the  Decedent  Estate  Law,  though  her  surviving  husband  was 
not  mentioned  in  the  will. 

Proceeding  upon  the  probate  of  a  wilL 

Elmer  E.  Studley,  for  petitioner. 

Carl  Graff,  for  contestant. 

NoRLE,  S.  The  instrument  offered  for  probate  in 
this  proceeding  was  executed  by  the  decedent,  who 
was  then  unmarried,  on  August  12,  1903,  in  the  state 
of  New  Jersey,  where  the  decedent  then  resided. 

On  March  28,  1908,  the  decedent  was  duly  married 
to  Edgar  G.  Cutler,  and  shortly  afterward  sheand 
her  said  husband  moved  into  the  state  of  New  Tork, 
of  which  state  she  was  a  resident  at  the  time>6f  her 
death,  August  20,  1920.  ^^ 

The  husband,  Edgar  G.  Cutler,  is  not  mentioned 
in  the  said  instrument. 

No  issue  was  bom  of  this  marriage,  but  besides  her 
husband  the  decedent  left  surviving  her  Marie 
Yongen  Heatly,  a  daughter  by  a  previous  marriage, 
who  is  of  full  age. 


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204  Matter  of  Cutler. 

Surrogate's  Court,  Queens  County,  January,  1921.     [VoL  114 

Objection  was  made  to  the  probate  of  the  said 
instrument  by  Edgar  Ot.  Cutler,  husband,  on  the 
ground  that  it  is  void  under  section  36  of  the  Decedent 
Estate  Law. 

At  the  time  the  instrument  was  executed  section 
36  of  the  Decedent  Estate  Law  was  in  effect,  and 
provided  as  follows:  '*A  will  executed  by  an  unmar- 
ried woman  shall  be  deemed  revoked  by  her  subse- 
quent marriage.'* 

At  the  time  of  the  death  of  the  decedent,  however, 

section  36  of  the  Decedent  Estate  Law  was  not  ia 

.  effect,  having  been  repealed  by  Laws  of  1919,  chapter 

293,  section  1,  in  effect  September  1,  1919,  which 

provided  as  follows: 

**  §  35.  Revocation  by  marriage.  If  after  making 
any  will,  such  testator  marries,  and  the  husband  or 
wife,  or  any  isisue  of  such  marriage,  survives  the  testa- 
tor, such  will  shall  be  deemed  revoked  as  to  them, 
unless  provision  shall  have  been  made  for  them  by 
some  settlement,  or  they  shall  be  provided  for  in  the 
will,  or  in  such  way  mentioned  therein  as  to  show  an 
intention  not  to  make  such  provision;  and  such  sur- 
viving husband  or  wife,  and  the  issue  of  such  mar- 
riage, shall  be  entitled  to  the  same  rights  in,  and  to 
the  same  share  or  portion  of  the  estate  of  said  testator 
as  they  would  have  been,  if  such  will  had  not  been 
made.  No  evidence  to  rebut  such  presumption  of 
revocation  shall  be  received,  except  as  herein 
provided.** 

There  is  no  dispute  as  to  the  facts  in  the  case  and 
the  question  to  be  decided  is  whether  the  law  govern- 
ing the  making  of  a  will  by  the  said  decedent  and  its 
validity  was  that  in  effect  at  the  time  of  the  execu- 
tion of  the  instrument,  or  that  in  effect  at  the  time 
of  her  death. 


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Matter  of  Cutler.  206 

Misc.]     Surrogate's  Court,  Queens  County,  January,  1921. 

There  is  nothing  in  section  35  of  the  Decedent 
Estate  Law  which  makes  it  retroactive,  or  limits  its 
application  in  any  way. 

In  Moultrie  v.  Hunt,  23  N.  Y.  394,  the  Court  of 
Appeals,  referring  to  a  will,  say :  '*  It  is  of  the  essence 
of  a  will  that  until  the  testatrix's  death  it  is  ambula- 
tory and  revocable.  No  rights  of  property  or  powers 
over  property  were  conferred  upon  any  one  by  the 
execution  of  this  instrument,  nor  were  the  estate, 
interest  or  rights  of  the  testator  in  his  property  in 
any  way  abridged  or  qualified  by  that  act.  The  trans- 
action was  in  its  nature  inchoate  and  provisional;  it 
prescribed  the  rules  by  which  his  succession  should 
be  governed,  provided  he  did  not  change  his  deter- 
mination in  his  lifetime.*'  See  also  Ohecny  v.  Qoetz, 
116  App.  Div.  807,  and  cases  therein  cited,  and  also 
Matter  of  Tone,  186  id.  363. 

A  will  being  ambulatory  and  not  taking  effect  xmtil 
the  death  of  its  maker,  I  am  of  the  opinion  that  the 
law  to  be  applied  is  that  in  force  at  the  time  of  the 
death  of  the  decedent,  namely,  section  35  of  the 
Decedent  Estate  Law,  and  that,  therefore,  the  instru- 
ment here  offered  for  probate  should  be  admitted, 
subject  to  the  provisions  of  said  section  35,  and  that 
letters  testamentary  be  issued  accordingly. 

Probate  decreed. 


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206  BuoKLEY  V.  Shabpe. 


SnpreEira  Court,  January,  1921.  [VoL  114. 


BiANCHB  BuoKLETy  Plaintiff,  v.  BuDDiNGTON  Shabpb, 
as  Sheriflf  of  the  Caimty  of  Rensselaer,  Defendant. 

Matter  of  the  Application  of  Buddington  Sharpe, 
as  Sheriflf  of  Rensselaer  County,  for  an  Order 
Allowing  the  Deposit  in  Court  of  Moneys  Received 
from  Sales  of  Property  Belonging  to  Albebt  Q. 

BnOKl4BT. 

(Supreme  Court,  Albany  Special  Term,  January,  1921.) 

SlieriffB  —  duties  of  —  execationa — when  motion  for  an  order 
permittittg  aheriif  to  deposit  in  conrt  before  the  return  day 
the  proceeds  of  execution  sales  granted  —  judgments — 
General  Bules  of  Practice,  rale  6—  Oode  Oiy.  Pro.  §  723. 

It  is  the  well-settled  law  of  this  state  that  it  is  the  duty 
of  the  sheriff,  not  only  to  collect  the  moneys  due  upon  an 
execution  by  the  return  day  thereof,  but  to  bring  the  same 
into  court,  or  pay  it  over  to  the  plaintiff  or  his  attorney  by 
such  return  day.     (P.  206.) 

A  sheriff,  having  in  his  hands  sufficient  funds,  the  proceeds 
of  sales  of  property  under  an  execution,  to  pay  the  plaintiff's 
judgment  in  full,  was  served  with  a  notice  by  the  tnistee  under 
a  trust  agreement  purporting  to  have  been  signed  by  plaintiff, 
under  which  the  trustee  claimed  to  be  entitled  to  the  money  due 
on  the  plaintiff's  judgment  and  execution.  The  trustee  denied 
that  the  trust  agreement  had  been  abandoned,  as  claimed  by 
plaintiff.  Held,  that  a  motion  by  the  sheriff  for  an  order 
permitting  him  to  deposit  in  court  before  the  return  day  of 
the  execution,  the  proceeds  of  the  execution  sales  and  be 
absolved  from  further  responsibility  in  relation  thereto,  will  be 
granted,  and  the  issue  as  to  the  ownership  of  the  moneys 
determined  either  in  an  action  by  the  trustee  to  enforce  the 
trust  agreement  or  by  an  action  brought  by  the  judgment 
creditor,  to  set  it  aside     (Pp.  211-213.) 

Had  the  time  for  the  return  of  the  execution  expired,  the 
judgment  creditor's  remedy  would  have  been  either  to  com- 
pel a  return  by  the  sheriff  under  rule  6  of  the  General  Rules 
of  Practice,  or  to  bring  an  action  for  damages  against  him. 
(P.  213.) 


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Buckley  v.  Shabpb.  207 

Mise.]  Supreme  Court,  January,  1921. 

The  mistake  of  entitling  the  motion  papers,  in  the  action 
brought  against  him  as  sheriff  by  one  of  the  judgment  credi- 
tors, is  a  mere  irregularity  which  the  court  under  section  723 
of  the  Code  of  Civil  Procedure  may  correct,  where  the  sub- 
stantial rights  of  other  parties  in  interest  are  not  affected. 
(P.  212.) 

The  claims  of  the  judgment  and  attachment  creditors  of  the 
judgment  debtor  cannot  be  settled  on  this  motion,  although 
they  have  been  served  with  notice  thereof,  for  the  right  of  the 
party  claiming  the  money  being  in  doubt,  the  court  will  rele- 
gate her  to  her  action.     (Id.) 

Application  by  the  sheriflf  of  Rensselaer  county  for 
an  order  allowing  the  deposit  in  court  of  moneys 
received  from  sales  of  property. 

Craymer  &  Donohne,  for  plaintiff  and  others. 

Herbert  F.  Boy,  for  defendant  Sharpe. 

Abbott  H.  Jones,  for  Edward  Dwyer. 

Herbert  A.  Van  Kirk,  for  Greenwich  Bank. 

W.  S.  Ostrander,  for  George  B.  Little,  tmstee,  etc 

HiNMAN,  J.  This  is  an  application  by  a  sheriff 
having  charge  of  attachments  and  executions  against 
a  judgment  debtor  for  an  order  permitting  him  to 
deposit  with  the  court  or  the  clerk  thereof,  any  and  all 
proceeds  of  sales  in  attachments  and  executions  pre- 
viously levied  by  him  and  now  in  his  hands  to  await 
the  determination  of  conflicting  rights  and  priorities 
of  the  various  attaching  and  execution  creditors. 

It  is  unnecessary  to  review  all  of  the  facts  and 
details  in  relation  to  these  various  attachments  and 
executions.  It  is  sufficient  that  the  plaintiff  has  recov- 
ered a  judgment  and  has  issued  an  execution  which  is 
in  the  hands  of  the  sheriff  and  that  there  are  sufficient 
funds  to  pay  the  plaintiff  ^s  judgment  in  full,  but  con- 


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208  Buckley  v.  Shabpe. 

Supreme  Court,  January,  1921.  [Vol.  114. 

jflict  has  arisen  over  the  right  of  the  plaintiff  to  enjoy 
the  proceeds  of  such  execution.  The  sheriff  has  been 
served  with  a  notice  by  George  E.  Little,  as  trustee, 
under  a  trust  agreement  purporting  to  have  been 
signed  by  the  plaintiff  under  which  he  claims  to  be 
entitled  to  <tie  money  due  on  the  plaintiff's  judgment 
and  execution.  The  claim  of  the  plaintiff  is  that  the 
alleged  agreement  was  abandoned.  This,  however, 
seems  to  be  denied  by  the  trustee,  who  is  pressing  his 
claim  to  the  right,  as  such  trustee,  to  the  moneys  due 
und*er  the  plaintiff's  judgment  and  execution. 

Notice  of  the  sheriff's  application  for  this  order  has 
apparently  been  given  to  the  various  judgment  credi- 
tors of  Albert  G.  Buckley,  judgment  debtor. 

The  attorneys  for  the  plaintiff  in  the  action  of 
Buckley  v.  Sharpe  raise  the  point  that  the  court  has 
no  power  to  entertain  such  a  motion  and  to  direct  the 
payment  of  the  money  into  court  as  prayed  for  by 
the  sheriff,  and  they  contend  that  the  sheriff  has  no 
option  under  the  Code  but  to  pay  the  money  in  satis- 
faction of  the  judgments  in  the  order  of  priority  in 
which  the  warrants  of  attachment  were  issued. 

My  investigation  with  reference  to  this  contention 
demonstrates  what  is  occasionally  the  case,  that  a 
proposition  of  law  has  been  so  thoroughly  settled  over 
such  a  long  period  of  time  ^hat  the  principle  of  the 
law  has  been  lost  to  view  so  completely  that  it  is  not 
easy  to  find  the  authorities  sustaining  it. 

It  is  the  well  settled  law  of  this  state  that  it  is  the 
duty  of  the  sheriff,  not  only  to  collect  the  moneys  due 
upon  an  execution  by  the  return  day  thereof,  but  to 
bring  the  same  into  court,  or  pay  the  same  over  to 
the  plaintiff  or  his  attorney  by  such  return  day.  This 
alternative  remedy  of  the  sheriff  to  bring  the  moneys 
into  court  has  apparently  existed  from  early  times  in 
this  state  and  is  the  law  of  the  state  today.    Crocker 


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Buckley  v.  Sharpe.  209 

Misc.]  Supreme  Court,  January,  1921. 

Sheriffs  (3d  ed.),  §  424;  Smith  Sheriffs,  405;  Nelson 
V.  Kerry  59  N.  T.  224;  MUls  v.  Davis,  53  id.  349; 
Parker  v.  Bradley,  46  N.  Y.  Super.  Ct.  244;  Phillips  v. 
Wheeler,  2  Him,  603;  affd.,  67  N.  Y.  104;  Brewster  v. 
Few  Ness,  18  Johns.  133;  Code  Civ.  Pro.  §  1366. 

The  story  leading  up  to  the  establishment  of  this 
principle  is  weU  set  forili  in  Smith  on  Sheriffs, 
Coroners  and  Constables  at  page  405.  In  as  much  as 
this  work  was  published  in  1883  and  may  not  be  avail- 
able generally  a  quotation  from  the  same  may  be 
valuable.    It  reads  as  follows: 

**  Disposition  of  Proceeds. —  Formeriy,  in  strict- 
ness, moneys  collected  upon  an  execution  by  a  sheriff 
were  to  be  brought  into  couri;.  Afterward  it  became 
a  sufficient  answer  for  a  sheriff,  when  sued  for  not 
bringing  the  moneys  into  court,  to  say  that  he  had 
paid  them  over  into  the  hands  of  the  execution  credi- 
tor. And,  latterly,  the  general  practice  has  been  to 
pay  the  proceeds  to  the  execution  creditor,  or  to  his 
attorney.  There  is  no  statute  governing  the  subject, 
and,  in  this  regard,  expressly  pointing  out  the  sheriff's 
duty.  But  the  practice  has  been  from  the  earlier 
times,  for  the  sheriff  to  bring  the  money  into  court. 
And  this  practice  is  good  even  at  the  present  time.  If 
there  can  be  no  doubt  as  to  who  is  entitled  to  the 
proceeds,  the  sheriff  should  pay  them  over  to  the  one 
entitled  to  receive  them,  or  to  his  attorney.  But  if 
there  be  doubt,  if  there  be  adverse  claimants  of  the 
proceeds,  the  sheriff  is  not  bound,  at  his  peril,  to 
determine  the  matter,  nor  need  he  apply  to  the  court 
for  direction  and  protection.  He  may,  with  the  execu- 
tion and  as  part  of  the  return  thereof,  deliver  the 
proceeds  to  the  clerk  of  the  county  where  the  execu- 
tion is  to  be  returned.  This  is  a  payment  of  the 
money  into  court.  Und^er  the  Code  the  money  might 
be  paid  by  the  sheriff  directly  to  the  county  treasurer, 
14 


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210  Buckley  v.  Sharpb. 

Supreme  Court,  Januarji  1921.  [Vol.  114. 

It  is  better,  however,  to  return  the  money  with  the 
execution  to  the  county  clerk,  when  it  is  desired  to 
bring  the  proceeds  into  court/' 

The  leading  authority  cited  by  Smith  as  sustaining 
the  foregoing  is  the  case  of  Nelson  v.  Kerr,  supra,  in 
which  the  Court  of  Appeals,  per  Andrews,  J.  says; 
'*  Since  the  case  of  Brewster  v.  Va/n  Ness,  the  doctrine 
there  stated  has  been  considered  the  settled  law  in 
this  State,  and  no  case  has  been  cited  in  which  it  has 
been  questioned.  Nor  is  it  perceived  that  the  change 
in  the  form  of  the  execution,  since  the  Code,  calls  for 
any  change  of  the  rule  declared  in  that  case.  The 
sheriff  has  the  same  means  of  protecting  himself  from 
liability.  He  may  still  bring  the  money  into  court 
with  his  writ,  or  pay  it  over  to  the  plaintiff  in  the 
execution.  The  clerks  of  the  several  counties  are 
clerks  of  the  court,  and  the  clerk  with  whom  the  judg* 
ment  roll  is  filed,  and  where  the  execution  is  to  be 
returned,  is  the  proper  officer  to  receive  the  money, 
and  payment  by  a  sheriff  to  him  is  payment  into  court. 
If  paid  to  him,  he  holds  it  for  the  party  entitled  to 
receive  it.  There  is  no  statute  authorizing  a  sheriff 
to  pay  money  collected  on  execution  into  court,  nor, 
80  far  as  I  know,  has  there  ever  been,  but  the  prac- 
tice has  prevailed  from  early  times.  In  Bacon's 
Abridgment  (tit.  Execution,  C),  it  is  said:  '  Upon 
a  writ  of  fi.  fa.,  the  sheriff  cannot  deliver  the  goods 
of  the  defendant  to  the  plaintiff  in  satisfaction  of  his 
debt,  but  the  goods  are  to  be  sold,  and  the  money, 
in  strictnesif^,  is  to  be  brought  into  court.' 

**  It  is  true  that  the  sheriff,  by  the  former  writ  in 
use  in  this  State,  was  commanded  to  bring  the  money 
*  before  our  justice,'  etc.,  on  the  return  day,  and  so 
were  the  ancient  precedents.  But  we  have  not  found 
any  authority  for  the  proposition  that  the  mandate 
of  the  writ  was  the  sole  ground  upon  which  the  sheriff 


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BuoKLBY  V.  Sharps.  211 


Mise.]  Supreme  Courfc,  Jannftry,  1921. 

was  entitled  to  bring  the  money  into  court,  in  dis- 
charge of  his  liability.  Forms  of  writs  furnish  strong 
evidence  of  what  the  law  was  when  they  were  devised, 
and  of  the  duty  of  the  officer  to  whom  they  are 
directed.  And  it  may  well  be  supposed  that  the  right 
of  the  sheriff  to  bring  money  collected  on  process  into 
court,  was  established  when  the  precedents  of  execu- 
tions referred  to  were  framed,  in  view  of  the  mani- 
fest justice  or  convenience  of  the  practice.  Section 
290  of  the  Code  declares  that  an  execution  shall  be 
returnable  within  sixty  days  after  its  receipt  by  the 
officer,  to  the  derk  with  whom  the  record  of  judgment 
is  filed.  This  is  the  only  section  defining  the  duty 
of  the  sheriff  upon  the  subject,  and  under  it  the  sheriff 
may,  I  think,  pay  the  money  collected  to  the  clerk,  as  a 
part  of  the  return  therein  provided,  although  no 
special  mention  is  made  of  it  in  the  writ.'' 

The  portion  of  section  290  of  the  old  Code  referred 
to  in  the  above  decision  is  now  found  in  section  1366 
of  the  present  Code,  in  which  it  is  provided  that,  ^^  An 
execution  •  •  •  must  require  the  sheriff  to  return 
it  to  the  proper  derk,  within  sixty  days  after  the 
receipt  thereof." 

I  cannot  find  that  the  case  of  Nelson  v.  Kerr  has 
been  questioned  at  any  time  since  it  was  decided,  nor 
can  I  find  any  statute  tending  to  modify  or  reverse 
the  principle  there  sustained. 

It  seems  that  the  sheriff  need  not  apply  to  the  court 
for  direction  and  protection,  but  there  is  ample  author- 
ity for  the  application  whidi  is  made  by  the  sheriff 
in  this  case.  The  practice  was  recognized  as  proper 
in  the  case  of  PhUlips  v.  Wheeler,  supra^  in  which  it 
was  held  that  where  there  was  controversy  over  the 
proceeds  in  the  hands  of  the  sheriff  and  he  desired*  to 
know  what  to  do  with  them,  he  could  apply  to  the 
Supreme  Court  for  direction.    It  seems,  however,  that 


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212  Buckley  v.  Shaepb, 

Supreme  Courts  January,  1921.  [Vol.  114. 

in  such  a  case  the  application  of  the  sheriff  is  made 
as  a  motion  in  all  of  the  actions  in  which  judgments 
have  been  obtained,  and  in  which  the  judgment  cred- 
itors become  adverse  claimants  to  the  proceeds  in  his 
hands,  and  if  the  judgments  happen  to  have  been 
obtained  in  more  than  one  judicial  district,  that  the 
sheriff  may  apply  to  the  Supreme  Court  in  his  own 
county  for  directions,  notwithstanding  that  the  Code 
provides  that  motions  upon  notice  must  be  made  in 
the  county  in  which  the  action  is  triable  or  in  the 
county  adjoining  that  in  which  it  is  triable.  Phillips 
V.  Wheeler,  supra. 

The  sheriff  has  entitled  his  papers  in  this  motion 
in  the  action  brought  against  him,  as  sheriff,  by 
Blanche  Buckley,  one  of  the  judgment  creditors.  This, 
however,  is  a  mistake  or  irregularity  which  the  court 
under  section  723  of  the  Code,  is  empowered  to  over- 
look and  correct,  where  the  substantial  rights  of  other 
parties  in  interest  are  not  affected.  I  believe  that  it 
is  my  duty  to  permit  this  correction  to  be  made  in 
view  of  the  fact  that  it  seems  to  be  conceded  by  the 
attorney  for  the  plaintiff  and  all  others  appearing 
before  me,  that  notice  of  the  application  has  been 
given  to  all  of  the  judgment  creditors  in  interest. 

Having  decided  that  I  wiU  entertain  the  applica- 
tion and  i>ermit  this  correction  to  be  made,  entitling  the 
application  in  all  of  the  several  actions  affected,  it 
may  be  well  for  me  to  intimate  still  further  the 
resulting  status  of  the  parties  affected  by  this  decision. 

I  think  it  is  clear  as  was  said  by  the  court  in  the 
case  of  Wilson  v.  Wright^  9  How.  Pr.  459,  that  the 
adverse  claims  of  the  judgment  and  attachment  cred- 
itors cannot  be  settled  upon  this  motion.  For, 
wherever  the  right  of  the  party  claiming  the  money  is 
in  doubt,  the  court  will  refuse  to  interfere  on  motion 
and  will  turn  him  over  to  his  action. 


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Buckley  v.  Sharpb,  213 

Mise.]  Supreme  Court,  January,  1921. 

Upon  the  payment  of  these  moneys  into  court  by 
depositing  them  in  connection  with  the  return  with 
the  clerk  of  the  court  in  ax;cordance  with  the  fore- 
going authorities,  it  would  seem  to  me  that  the  ques- 
tion at  issue  as  to  the  ownership  of  these  moneys 
would  properly  be  determined  in  an  action  by  the 
trustee  to  enforce  the  said  agreement  or  by  the  judg- 
ment creditor,  Blanche  Buckley,  to  set  it  aside. 

The  action  of  Blanche  Buckley  against  the  aheriff 
seems  to  have  been  prematurely  brought  in  view  of 
the  fact  that  the  time  has  not  yet  expired  to  require 
him  to  make  his  return.  If  that  time  had  expired 
the  plaintiff  would  have  a  remedy  either  to  compel 
a  return  under  rule  6  of  the  General  Rules  of  Practice, 
or  to  bring  such  an  action  for  damages  against  the 
sheriff. 

In  view  of  the  fact  that  the  return  day  has  not  yet 
arrived  and  the  sheriff  has  the  right  to  pay  these 
moneys  into  court  voluntarily  or  by  order  of  the  court, 
the  remedy  of  the  plaintiff,  Blanche  Buckley,  is  not  in 
an  action  against  the  sheriff  or  an  order  in  an  attach- 
ment proceeding  under  rule  6,  but  to  have  the  issue 
determined  in  an  action  between  the  parties  interested. 

Upon  the  payment  of  the  moneys  into  court  before 
the  return  day,  the  sheriff  will  be  absolved  from  all 
further  responsibility. 

The  motion  is  granted,  with  ten  dollars  costs 

Motion  granted,  with  ten  dollars  costs. 


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214        Matter  of  Central  UifiON  Trust  Co. 

Supreme  Court,  January,  ld2L  [Vol.  114. 


Matter  of  the  Application  of  Central  Union  Trust 
Company  of  New  York,  as  Trustee  tinder  the  Will 
of  Laura  A.  Delano,  Deceased,  of  the  Several  Trusts 
by  Said  Will  Created  for  the  Benefit  of  John  Arm- 
strong Chanlbr,  Winthrop  Astor  Chanler,  Eliza- 
beth WiNTHROP  Chapman,  William  Astor  Chan- 
ler, Loins  Stutyesant  Chanler,  Margaret  Living- 
ston Aldrich,  Robert  Winthrop  Chanler  and 
AtiTda  Beeeman  Emmet,  Eespectively,  for  Leave  to 
Sell  Certain  Eeal  Estate  Pursuant  to  Sections  106 
and  107  of  the  Real  Property  Law. 

(Supreme  Conrt^  New  York  Special  Term,  Jannarji  1921.) 

Seal  Property  Law,  §§  106,  107— when  sale  of  zeal  estate  hy  a 
teetamentary  trustee  will  be  approved  —  evidence. 

A  eale  of  real  eetate  by  a  testamentary  tmstee  pursuant  to 
leave  granted  under  sections  105  and  107  of  the  Real  Prop- 
erty Law  will  not  be  rejected,  because,  pending  the  applica- 
tion for  leave  to  sell  and  a  hearing  thereon,  there  has  been  an 
increase  in  values.  The  sale  will  be  approved  at  the  price 
offered,  which  the  testimony  shows  to  have  been  fair  when 
made  and  accepted  subject  to  the  approval  of  the  court. 

Application  by  a  trustee  to  sell  certain  real  estate. 

Miller,  Bong,  Lane  &  Trafford  (James  Gore  King 
and  Walcott  P.  Bobbins,  of  counsel),  for  Central 
Union  Trust  Company  of  New  York,  as  trustee,  etc, 
petitioner. 

Egerton  L.  Winthrop,  Jr.,  guardian  ad  Utem  for 
Christopher  Temple  Emmet  and  others. 

Egerton  L.  Winthrop,  guardian  ad  Utem  for  C.  T. 
Emmet,  Jr.,  and  others. 


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Mati?eb  of  CBNTBAii  Union  Trust  Co.       215 

Misc.]  Supreme  Court,  January ,  1921. 

Charles  A.  Bunk,  as  a  friend  of  the  oonrt. 

William  Bondy,  referee. 

McAvoYy  J.  All  of  the  testimony  has  been  read. 
The  views  of  the  experts  are  highly  speculative  and 
as  usual  give  ground  for  assuming  that  they  were 
srubject  to  change  within  the  month  if  realty  conditions 
were  less  abnormal  than  at  the  time  of  testimony.  I  do 
not  agree  with  the  referee  that  sale  ought  to  be 
rejected  because  a  forward  leap  in  values  has  been 
made  pending  the  application  to  the  court  for  leave  to 
sell  and  the  hearing  thereon.  Such  a  rule  carries 
with  it  a  great  detriment  to  and  a  lack  of  stability  in 
the  results  of  these  proceedings.  If  the  bargain  is 
good  when  made  the  court  ought  to  give  the  advantage 
to  the  buyer.  The  seller  has  all  that  he  intended  to 
get  and  cannot  ask  more.  Neither  should  a  court 
adopt  an  attitude  which  in  effect  says  to  the  bargainer : 
You  may  have  the  land  if  we  do  not  find  a  way  to 
repudiate  the  contract  through  eecuring  a  higher  bid. 
After  promising  to  convey  to  a  buyer  if  the  bargain 
be  approved  by  the  court,  the  time  of  value  taking  is 
the  date  of  the  contract.  Any  other  rule  is  unwork- 
able,  leads  to  temerity  in  making  these  sales  by 
trustees  where  there  are  infant  remaindermen  and 
would  inhibit  the  sale  of  almost  any  land  which  had 
the  prospect  of  a  use  pending  a  costly,  lengthy  and 
difficult  proceeding.  The  sale  will  be  approved  as  of 
the  price  offered  which  the  testimony  shows  to  have 
been  fair  when  made  and  accepted  subject  to  judicial 
approval,  and  to  have  been  inflated  as  of  the  date  of 
the  reference  by  an  unusual  demand  not  necessarily 
likely  to  continue. 

Ordered  aioooidingly. 


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216    People  ex  bel.  Mullen  Cont.  Co.,  Inc.,  v.  Craig. 

Supreme  Court,  January,  1921.  [Vol.  114. 


The  People  ex  rel.  H.  J.  Mullen  Contracting  Com- 
pany, Inc.,  Relator,  v.  Charles  L.  Craig,  as  Comp- 
troller of  the  City  of  New  York,  John  F.  Hylan, 
ae  Mayor  of  the  City  of  N«w  York,  and  Philip 
Berolzheimer,  as  Chamberlain  of  the  City  of  New 
York,  BespondentB. 

(Supreme  Court,  Kings  Special  Term,  January,  1921.) 

MandamnB  —  when  denied  against  comptroUer  of  the  city  of 
New  York  — contracts  — municipal  corporations  —  f rand — 
Qreater  New  York  Charter,  §§  149,  419. 

Mandamus  lies  against  publio  officers  to  compel  the  per- 
formance of  ministerial  duties  which  are  clearly  absolute  and 
imperatiya     (P.  217.) 

Where  although  the  various  engineers  and  auditors  whose 
duty  it  is,  as  a  condition  precedent  to  the  issuance  of  a  warrant 
of  the  city  of  New  York  on  account  of  work  done  pursuant  to 
a  municipal  contract  involving  an  expenditure  of  more  than 
$1,000,  to  examine  into  the  matter,  have  certified  that  work  of 
the  character  and  quantity  entitling  a  contractor  to  receive  a 
progress  payment  in  a  certain  sum,  has  been  done,  the  city 
comptroller  may  delay  payment  pending  an  examination  by 
him  under  section  149  of  the  Greater  New  York  Charter  of 
the  contractor  under  oath  with  respect  to  facts  and  circum- 
stances surrounding  the  public  letting  of  the  contract,  in  order 
to  determine  whether  it  wae  of  the  character  provided  in  sec- 
tion 419  of  the  Greater  New  York  Charter,  and  whether  there 
was  collusion  in  the  bidding  or  fraud  in  the  performance  of 
the  eontraet     (Pp.  222,  223.) 

Where  the  contractor  refuses  to  fully  submit  to  such  an 
examination,  his  application  for  a  writ  of  peremptory  man- 
damus to  compel  the  iseuanee  of  the  warrant  will  be  denied 
as  matter  of  discretion.     (P.  225.) 

The  exception  in  said  section  149  of  the  Greater  New  York 
Charter  which  refers  to  '^  claims  arising  under  the  provisions 
of  contracts  made  at  public  letting  in  the  manner  provided  by 
section  419  of  this  act"  was  intended  only  to  prevent  an 
inquiry  into  the  manner  in  which  a  contract  validly  entered 


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People  ex  bel.  Mullen  Cont.  Co.,  Inc.,  v.  Craig.    21 7 


Misc.]  Supreme  Court,  January,  1921. 

into  by  the  city  has  been  performed,  and  not  to  one  where 
the  circumstances  indicate  that  the  contract  originated  in 
fraud ;  the  exception,  therefore,  is  not  controlling  in  the  present 
case.     (P.  224.) 

Applicamon  for  a  writ  of  mand'amuiS. 

John  C.  Wait,  for  relator. 

John  P.  O'Brien,  corporation  counsel,  for  respond- 
ents. 

Charies  L.  Craig,  comptroller  of  the  city  of  New 
York,  in  x>er»on. 

Benedict,  J.  This  is  an  appKcation  for  a  writ  of 
mandamnfl  requiring  the  comptroller  to  deliver  to  the 
relator  a  warrant  of  the  city  of  New  York  for  $35,244 
on  an  account  of  work  done  under  a  contract  for 
regulating,  paving,  etc..  Third  avenue  from  First  to 
Thirteenth  streets.  College  Point,  borough  of  Queens. 

The  writ  of  mandamus,  generally  speaking,  issues 
only  in  cases  where  there  m  a  clear  legal  right  in  the 
relator  and  there  is  no  other  adequate  and  legal  means 
to  obtain  it.  In  the  case  of  public  officers  it  issues 
to  compel  the  perf  ormanoe  of  ministerial  duties  which 
are  clearly  enjoined  as  absolute  and  imperative.  The 
writ  is  prerogative  in  its  character  to  the  extent  that 
its  issue  is  not  of  right  but  of  discretion.  People  ex  rel. 
McMachin  v.  Police  Commissioners y  107  N.  Y.  235; 
People  ex  rel.  Faile  v.  Ferris,  76  id.  329.  The  discretion 
to  be  exercised  is  a  judicial  one.  People  ex  rel.  Gas- 
Light  Go.  v.  Gommon  Gouncil,  78  N.  Y.  56 ;  Shepard  v. 
Oakley,  181  id.  339;  People  ex  rel.  McClelland  v. 
Bowling,  55  Barb.  197. 

The  present  application  involves  the  question 
wbetlwr,  under  the  charter  of  the  city  of  New  York, 


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Zl8    People  ex  rel.  Mullen  Cont.  Co.,  Inc.,  v.  Craig. 

Supreme  Court,  January,  1921.  [Vol.  114. 

the  comptroller  has  the  i)ower  to  exercise  any  judg- 
ment or  discretion  regarding  the  payment  of  claims 
against  the  city  of  New  York  aritedng  under  contracts, 
or  whether  he  is  merely  the  custodian  of  the  city's 
f undis  and  obliged  to  pay  therefrom  ajiy  and  all  claims 
againist  the  city  upon  contracts  which  have  been  made 
after  public  letting.  The  facts  in  the  case  are  set  out 
at  considerable  length  in  the  petition  and  affidavits 
of  the  relator  and  in  the  answering  affidavits  sub- 
mitted on  behalf  of  the  respondent.  It  will  not  be 
necesisary  to  recite  them  in  detail  here.  The  contract 
referred  to  in  the  petition  was  on-e  entered  into  after 
compliance  with  the  charter  forms  and  provisions 
regulating  the  giving  out  of  contracts  by  public  let- 
ting. The  relator  contends  that  the  comptroller  ils 
precluded  from  any  inquiry  under  section  149  of  the 
charter  to  ascertain  whetheir  in  point  of  fact  there  has 
been  a  valid  contract  awarded  at  a  public  letting  of 
the  dbaracter  provided  in  sedtion  419  of  the  charter. 
If  the  relator  be  correct  in  that  proposition,  then  the 
comptroller  is  stripped  of  all  power  to  conduct  any 
inquiry  into  the  validity  of  suich  a  claim  further  than 
to  ascertain  from  the  reports  of  various  officials 
Wihetiher  tiie  \\x)rk  required  to  be  done  by  the  contract 
has  been  done  in  the  manner  therein  prescribed. 

In  the  present  case  it  has  been  certified  by  the 
various  engineers,  or  auditors,  whose  duty  it  is  to 
examine  into  the  matter  as  a  condition  precedent  to  the 
preparation  of  the  warrant,  that  work  of  the  char- 
acter and  quantity  entitling  the  claimant  to  receive  the 
progress  payment  in  the  sum  of  $35,244  has  been  dkme 
by  the  contractor. 

The  only  question,  therefore,  which  requires  solu- 
tion in  the  determination  of  this  application  is  whether 
the  comptroller  may  examine  the  claimant  under  oath 
with  respect  to  facts  and  circumstan^oes  surrounding 


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People  ex  bbl.  MuiiLen  Cont.  Co.,  Inc.,  v.  Ceaig.    21 9 

Misc.]  Supreme  Court,  January,  1921. 

the  pmblic  letting  of  the  contract  in  order  to  ascertain 
whether  it  was  of  the  character  provided  in  section 
419  of  the  charter.  If  it  were,  the  relator  is  doubtless 
right  in  ©eeking  payncient  by  means  of  this  writ.  Sec- 
tion 419  IB  the  familiar  one  providing  for  the  public 
letting  of  contracts  for  work  to  be  done  or  supplies  to 
be  fumisbed  where  an  expenditure  of  more  than 
$1,000  is  involved.  It  confers  upon  borough  presidents 
and  heads  of  departments  the  power,  without  the  con- 
eent  or  api>roval  of  any  other  department  or  officer 
of  the  city  government,  to  award  the  contract  to  the 
loweeit  bidder,  unless  the  board  of  estimate  and  appor- 
tionment, by  a  three-fourths  vote  of  the  whole  board, 
shall  determine  that  it  iis  for  the  public  interest  that 
a  bid  other  than  the  lowest  sihould  be  accepted.  In 
form  the  contract  in  question  appeaps>  to  have  been 
regularly  made  pursuant  to  the  provisions  of  the  ©ec- 
tion  referred  to. 

The  charter,  by  section  149,  provides  further  as 
follows:  **  •  •  •  The  comptroller  may  require 
any  i)erfion  presenting  for  settlement  an  account  or 
claim  for  any  cause  whatever,  against  the  corporation, 
to  be  sworn  before  him  or  before  either  of  the  deputy 
comptrollers,  touching  such  account  or  claim,  and 
when  so  sworn,  to  answer  orally  as  to  any  facts  relative 
to  the  justness  of  such  account  or  claim.  Willful  false 
ewearing  before  the  comptroller  or  deputy  comp- 
trollers is  perjury  and  punishable  as  sucL  He  shaU 
settle  and  adjust  all  claims  in  favor  of  or  against  the 
corporation,  and  aU  accounts  in  which  the  corporation 
is  concerned  as  debtor  or  creditor;  but  in  adjusting 
and  settling  such  claims,  he  shall,  as  far  as  practicable, 
be  governed  by  the  rules  of  law  and  principles  of 
equity  which  prevail  in  courts  of  justice.  No  claim 
against  the  city  or  against  any  of  the  counties  con- 
tained within  its  territorial  limits,  or  payable  in  the 


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220   People  ex  bel.  Mullen  Cont.  Co.,  Inc.,  v.  Cbaiq. 

Supreme  Court,  January,  1921.  [Vol.  114. 

first  instamce  from  moneys  in  the  city  treasury  for 
sCTvices  rendered  or  work  doiiie  or  material's  or  mip- 
pKes  fumifiiied  except  (1)  claimfli  reduced  to  jiidgment, 
or  (2)  awards,  costs,  ijhargee  and  expenses  duly  taxed 
or  ordered  paid  in  judicial  prooeedingB,  or  (3)  claims' 
arising  under  the  provisionB  of  contracts  made  at 
public  letting  in  the  manner  provided  by  section  four 
hundred  and  nineteen  of  this  act,  or  (4)  claims  settled 
and  adjusted  by  the  comptroller,  pursuant  to  the 
authority  of  this  section,  shall  be  paid  unless  an 
auditor  of  accounts  shall  certify  that  the  charges  there- 
for are  just  and  reasonable;  and  except  as  herein- 
before otherwise  provided,  all  contracts  with  the  city 
or  any  of  such  counties  or  with  any  public  oflScer  acting 
in  its  or  their  behalf,  s-hall  be  subject  to  such  audit 
and  revision  by  the  department  of  finance.  •  *  •  *' 
It  appears  from  the  comptroller's  affidavit  that  on 
November  11,  1920,  a  warrant  for  $35,244  in  favor  of 
the  i)etitioner  on  account  of  the  contract  in  this  pro- 
ceeding was  made  ready  by  the  bureau  of  audit  of 
the  comptroller's  department,  and  pursuant  to  the 
comptroller's  personal  direction  such  warrant  was 
sent  to  the  comptroller's  desk,  together  with  the  con- 
tract and  the  voucher  upon  which  such  warrant  was 
based.  The  comptroller  states  that  this  direction  was 
given  by  him  in  order  that  he  might  conduct  such 
further  inquiry  and  perform  such  duty  of  supervision 
as  he  felt  that  he  was  obliged  to  discharge  for  the 
protection  of  the  city  in  this  case.  He  lays  particular 
stress  upon  the  fact  that  prior  to  November  11,  1920, 
public  charges  had  been  made  concerning  the  alleged 
fraudulent  character  of  contracts  entered  into  on 
behalf  of  the  city,  whereby,  under  pretense  of  open 
competitive  bidding  of  the  ch'araoter  contemplated  by 
section  419  of  the  charter,  collusive  and  illegal  bidding 
bad  taken  place  at  sums  greatly  in  excess  of  fair  and 


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Pbofle  ex  rel.  MuiiLBN  CoKT.  Co.^  Inc,  V*  Craig.    221 

Mise.]  Supreme  Court,  January,  1921. 

reasonable  prices  for  work  to  be  done  by  contractors 
for  the  city;  and  in  this  connection  he  calls  attention, 
in  a  general  way,  to  the  proceedings  before  the  joint 
legislative  committee  on  houeing,  and  before  grand 
juries  in  the  connty  of  New  York,  and  to  the  further 
fact  that  nnmerous  criminal  prosecutions  had  been 
instituted  against  individuals,  firms  and  corporations 
who  had  theretofore  entered  into  contracts  with  the 
city,  oome  of  which  prosecutions  had  resulted  in  the 
dief endants  pleading  guilty. 

The  comptroller  shows  that  certain  information 
concerning  the  dis'honest  and  fraudulent  character  of 
bidding  for  public  work  of  the  city,  particularly  in 
the  borough  of  Queen«,  had  come  to  his  attention,  and 
that  he  had  communicated  with  the  heads  of  the  dif- 
ferent city  departments  in  regard  to  it,  as  well  as  with 
the  legislative  committee,  and  that  on  account  of  these 
facts  and  of  others  which  he  refers  to  concerning  the 
relations  between  this  relator  and  other  bidders  for 
city  work  he  desired  to  examine  the  relator  through 
its  president  concemdng  the  claim  for  which  the  war- 
rant had  been  asked.  He  states  that  he  notified  Mr. 
Mullen,  the  president  of  the  relator,  to  submit  to  an 
oral  examination  under  oath  before  the  comptroller 
before  the  warrant  would  be  delivered.  He  shows 
further  that  the  president  of  the  relator  appeared  for 
such  examination,  which  was  begun  on  November  11, 
1920,  but  that  before  it  had  been  oonduded  by  the 
comptroller,  and  after  Mr.  Mullen  had  testified  to 
some  extent  concerning  the  contract,  he  requested  an 
adjoummenit  in  order  that  he  might  produce  certain 
papers,  wihich  he  said  were  in  his  possession,  in  con- 
nection with  the  contract,  and  thereupon  the  examina- 
tion waa  adjourned  in  order  to  enable  him  to  produce 
the  papers  and  to  obtain  further  information  required 
by  the  comptroller.    The  president  of  the  relator  did 


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222   People  ex  BEii.  Muli^en  Cont.  Co.,  Inc.,  v.  Craig. 

Supreme  Court,  January,  1921.  [Vol.  114^ 

not,  however,  return  to  the  comptroller ''S  office  for 
further  examiination,  and  although  the  comptroller 
endeavored  for  a  number  of  days  to  get  into  com- 
mmiioation  with  him,  he  never  came  back  for  the  pur- 
pose of  continuing  the  exjamination,  and  such  examina- 
tion has  never  been  concluded.  Extracts  from  his 
testimony  are  contained  in  the  comptroller's  affidavit. 
In  view  of  all  these  circumstances  and  the  relations 
existing  between  the  relator  and  certain  materialmen 
referred  to  in  the  papers,  it  does  not  seem  to  me  as 
though  this  were  a  case  where  the  court  ought  to 
exercise  the  dinscretion  rejwsed  ru  it  to  compel  the 
delivery  of  the  warrant  which  the  comptroller  has  in 
his  hands.  If  a  writ  of  mandamus  were  to  ieisue,  it 
would  be  tantamount  to  a  decision  by  the  court  that 
the  comptroller  had  no  right  in  this  case,  or  in  other 
similar  cases,  to  conduct  the  examination  of  the  claim- 
ant under  section  149  of  the  charter,  for  the  purpose 
of  inquiring  into  the  question  whether  contracts  which 
are  made  after  public  bidding  must  be  regarded  as 
binding  upon  the  city  of  New  York,  even  though  they 
were  originally  obtained  by  fraudulent  or  collusive 
means,  as  the  comptroller  states  that  in  his  opinion 
was  apparently  the  case  here.  I  am  not  prepared  to 
subscribe  to  any  such  doctrine.  Fraud  and  collusion 
in  obtaining  contracts  for  public  work  are  always  a 
proper  subject  of  inquiry,  and  I  think  that  the  comp- 
troller of  the  city  of  New  York  was  not  only  fully 
justified  by  the  facts  stated  in  the  papers  in  the 
present  case  in  desiring  to  prosecute  the  fullest 
possible  inquiry  into  the  bona  fides  of  this  contract, 
but  that  he  would  have  been  derelict  in  his  duty  if  he 
failed  to  make  such  inquiry.  In  the  case  of  public 
work  running  into  many  millions  of  dollars  each  year 
it  is  in  the  highest  degree  important  for  the  protec- 
tion of  the  taxpayers  of  the  dity  that  some  official 


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People  ex  rel.  MuiiLen  Cont.  Co.,  Inc.,  v.  Craig.     223 

Misc.]  Supreme  Court,  January,  1921. 

should  be  clothed  with  the  fulleist  powers  of  inquiry 
ais  to  honesty,  good  faith  and  fairness  of  contractors 
who  bid  for  public  work.  As  I  read  the  charter,  it 
was  the  intention  of  the  legislature  not  to  make  the 
comptroller  of  the  dty  of  New  York  merely  an  automa- 
ton, who  must  perfunctorily  audit  and  pay  all  claims 
agamst  the  city  which  appear  on  their  face  to  be 
regular.  Rather  I  think  it  must  be  presumed  to  have 
been  the  legislative  purpose  to  throw  around  the  public 
treasury  of  the  city  the  highest  possible  safeguards 
ftgaimst  fraud  or  collusion  by  conferring  upon  the 
comptroller,  as  the  responsible  ihead  of  the  fintance 
department  of  the  city,  the  widest  jxyssible  powers  of 
investigation  into  the  merits  of  all  claims.  This  court 
should  not  be  astute  in  finding  technical  reasons  for 
limiting  or  destroying  the  comptroller's  power  of 
investigation  surrounding  the  letting  of  the  contract 
where  the  circumstances  are  such  as  to  arouse  reason- 
able suspicion,  nor  should  it  seek  to  substitute  its 
judgment  for  the  qiuisi  judicial  discretion  of  the  comp- 
troller in  regard  to  the  validity  of  claims  presented  to 
him  in  cases  where  there  is  any  ground  for  believing 
that  the  contract  was  obtained  by  fraud. 

The  relator  does  not  come  before  the  court  with 
clean  bandis.  He  has  refused  to  submit  fully  to  the 
oral  examiniation  provided  for  in  section  149  of  the 
charter.  His  learned  counsel  contends  that  that 
examination  was  extended  by  the  comptroller  beyond 
its  proper  scope.  In  this  contention  I  cannot  ngree, 
because  I  think  that  under  the  circumstances  as  dis- 
closed the  matters  upon  which  information  was  sought 
were  pertinent  to  the  examination,  and  properly  came 
within  the  scoi)e  of  the  requirement  of  section  149, 
that  he  '*  answer  orally  as  to  any  facts  relative  to 
the  JTistnjess  of  such  account  or  claim. ' '  I  construe  the 
exception  in  section  149  of  tbe  charter,  which  refers 


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224    People  ex  bel.  Mullen  Cont.  Co.,  Inc.,  v.  Craig. 

Supreme  Court,  January,  1921.  [Vol.  114. 

to  '*  claim®  arising  uadea*  the  provisions  of  oontraota 
made  at  public  letting  in  lihe  miamier  provid'ed  by 
section  fonr  hundred  and  nineteen  of  this  act,"  as  not 
controlling  in  the  present  case.  Fraud  vitiates  all 
contracts,  and  it  is  inconceivable  that  the  legislature 
intended  by  this  exception  to  create  an  estoppel 
against  the  city  which  would  prevent  an  inquiry  by 
the  comptroller  into  the  validity  of  the  contract  itself 
in  cases  of  fraud.  I  think  that  this  exception  in  the 
statute  was  intended  only  to  prevent  an  inquiry  into 
the  manner  in  which  a  contract  validly  entered  into  by 
the  city  has  been  performed,  and  not  to  one  where 
there  were  circumstances  pointing  to  the  probable 
conclusion  that  the  contract  originated  in  fraud. 

In  concluision,  I  will  refer  to  a  few  cases  where  our 
courts  have  had  occasion  to  consider  applications 
similar  to  the  one  now  before  thiis  oooirt.  In  People 
ex  rel.  Beck  v.  Coler^  34  App.  Div.  167,  Mr.  Justice 
Cullen,  comceding  the  right  of  the  court  to  compel 
the  comptroller  by  mandamus  to  pay  the  amount  of 
a  contract  if  the  right  to  payment  is  clear,  stated  that 
the  rule  would  be  different  if  the  city  repudiated  or 
denied  the  existence  of  the  obligation;  and  he  was 
particular  to  emphasize  in  that  case  that  no  allega- 
tion whatever  of  fraud  was  made.  In  People  ex  rel. 
Lentilhon  v.  Coler,  61  App.  Div.  223,  the  Api>ellate 
Divi'sioA  in  the  first  department  went  much  further, 
and  held  that  the  payment  of  a  dtebt  will  be  enforced 
by  mandamus  only  where  upon  both  the  facts  and  the 
law  it  clearly  appears  that  there  camiot  be  a  defense 
to  the  claim,  and  therefore  it  confirmed  an  ordter  of  the 
Special  Term  denying  a  motion  for  a  peremptory  writ 
of  mandamus  directing  the  defendant  to  deliver  to 
the  relator  a  warrant  on  the  chamberlain  for  an 
amount  alleged  to  be  due  him  under  a  contract  with 
the  city.    The  Court  of  Appeals  dismisised  the  appeal 


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Michaels  v.  Flach.  225 

Misc.]  Supreme  Court,  January,  1921. 

taken  by  the  relator,  Judge  Edward  T.  Bartlett  saying 
that  it  was  clearly  within  the  discretion  of  the 
Supreme  Court  to  remit  the  parties  to  a  common-law 
action.  See  168  N.  Y.  6.  In  People  ex  rel.  Guidet  v. 
Green,  66  Barb.  630,  the  General  Term  in  the  first 
department  held  that  a  mandamus  will  not  lie  to  com- 
pel the  payment  of  a  money  demand  on  contract  where 
a  proper  remedy  by  action  exists,  Ingraham,  P.  J., 
fipaying:  **  More  especially  is  sfuoh  a  rule  proper  where 
the  facte  upon  which  the  claiim  is  based  are  disputed.'* 
Mr.  Justice  Brady,  in  a  concurring  opinion,  stated 
that  V  Neither  in  England  nor  in  this  state  has  a  man- 
damus been  allowed  where  there  was  a  remedy  by 
action  and)  a  reasonable  doubt  as  to  the  validity  of 
the  claim,  or  any  conclusion  that  it  should  be  examined 
by  due  process  of  law.*' 

I  am  constrained  by  the  foregoing  considerations 
to  deny  the  present  application,  and  this  I  do  in  the 
exercise  of  discretion,  with  ten  dollars  costs. 

Ordered  accordingly. 


Theodore  MichabLtS,  Plaintiff,  v.  Charles  Flach,  as 
Sole  Executor  of  the  Last  Will  and  Testament  of 
Christopher  Kjenzle,  Deceased,  Defendant, 

(Supreme  Court,  Kings  Trial  Term,  January,  1921.) 

Parent  and  chUd  —  father  cannot  be  released  by  separation  agree- 
ment with  wife  from  obligation  to  support  his  infant  child 
—  execntors  and  administrators  —  claim  against  decedent's 
estate  for  support  of  an  infant  —  accounting  —  Code  Civ. 
Pro.  §§  2680,  2681. 

The  father  of  an  infant  is  primarily  liable  for  its  main- 
tenance, and  even  though  by  the  terms  of  a  separation  agree- 
ment the  mother  assumes  liability  for  the  infant's  maintenance, 
during  her  life,  the  obligation  of  the  father  continues  after 
the  death  of  the  mother  until  the  child  becomes  of  age. 

15 


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226  Michaels  v.  Flach. 

Supreme  Court,  January,  1921.  [Vol.  114. 

A  separation  agreement  in  terms  released  the  father  from 
aU  claims  for  the  support  and  maintenance  of  his  infant  son 
during  the  mother's  life.  At  her  death  the  son  went  to  live 
with  his  uncle  who,  after  diligent  search,  was  unahle  to  locate 
the  father.  The  father's  will  made  no  provision  for  the  child 
who  is  still  a  minor.  The  uncle  presented  to  the  executor  of 
the  father's  estate  a  duly  verified  proof  of  claim  for  the  main- 
tenance, education  and  support  of  the  infant  son  for  the  six 
years  next  succeeding  the  death  of  his  mother.  No  notice  was 
taken  of  the  claim  except  hy  reference  in  the  account  of  the 
executor,  filed  nearly  a  year  after  the  presentation  of  the 
daim.  Prior  to  the  institution  of  a  proceeding  for  the  judicial 
settlement  of  the  accounts  of  the  executor,  to  which  the  uncle 
was  not  made  a  party  nor  included  as  a  creditor  of  the  estate, 
an  action  to  recover  the  amount  of  the  claim  so  presented  was 
brought  by  the  uncle  on  the  theory  that  the  debt  sued  on  was 
based  upon  a  claim  or  debt  against  defendant's  testator  as 
provided  by  sections  2680  and  2681  of  the  Code  of  Civil  Pro- 
cedure and  the  separation  agreement  was  pleaded  in  bar.  It 
appeared  that  no  part  of  the  money  given  by  the  father  to  the 
mother  for  the  support  of  herself  and  child,  at  the  making 
of  the  separation  agreement,  remained  unexpended  at  the  death 
of  the  mother  who  did  not  leave  sufficient  funds  to  bury  her. 
Held,  that  the  separation  agreement  did  not  release  the  father 
from  the  payment  of  plaintiff's  claim,  was  not  a  bar  to  the 
action  and  that  the  plaintiff  was  entitled  to  judgment  for  the 
full  amount  claimed,  with  interest  from  the  date  of  grant  of 
letters  testamentary. 

Action  uxx)n  oaiitra<3t. 

Patrick  J.  O'Beime,  for  plaintiff. 

Halbert  &  Quist,  for  defendant. 

Fawcett,  J.  This  is  an  action  broaght  by  the  plain- 
tiff to  recover  the  soim  of  $2,218  on  an  implied  agree- 
ment to  pay  for  the  maintenance,  education  and  sup- 
jKxrt  of  John  C.  Kienzle,  the  infant  ®on  of  the  defend- 
ant's testator,  from  the  time  said  infant  son  was  nine 
years  of  age,  when  his  moth'er,  Evelyn  Kienzle,  died, 
up  to  his  sixteenth  year.  The  agreed  statement  of 
twcAB  mbxmtted  for  deciisdon  follows: 


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MioHAELS  V.  Flagh.  227 

Misc.]  Supreme  Gourt,  Jar    iry,  1921. 

The  plaintiff  for  the  period  of  time  mentioned  in  the 
complaint  had  control  and  custody  of  the  infant  soai  of 
the  testator  and  supplied  the  neoesisaries  alleged 
therein,  and  the  amount  charged  for  the  maintenance 
of  the  infant,  to  wit,  $2,218  was  reasonable.  That  on 
May  31,  1904,  the  father  and  mother  of  the  child 
executed  a  separation  agreement  in  the  3d  paragraph 
of  whiish  it  was  agreed  that  for  the  sum  of  $4,028  paid 
to  the  mother,  the  mother  released  the  father  from  all 
claims  for  support  and  maintenance  of  the  child  dur- 
ing her  natural  life  and  it  was  further  agreed  that 
the  wife  should  retain  her  d*ower  interest  in  the 
premises  at  No.  101  North  Ninth  street,  Brooklyn, 
until  the  father  should  sell  the  same  and  that  upon  the 
sale  the  father  should  i>ay  to  the  general  guardian  of 
the  infant  a  sum  equal  to  one-third  of  the  purchase 
price,  which  should  be  in  lieu  of  dower  and  said  sum 
to  be  used  for  the  maintenance  and  support  of  the 
infant  during  hie  minority.  That  upon  the  said 
separation,  the  infant,  being  then  two  years  of  age, 
went  to  live  with  his  mother  and  lived  with  her  until 
her  d^eath  on  November  9,  1911,  when  he  was  nine 
years  of  age.  He  then  went  to  live  with  his  uncle,  the 
plaintiff,  who  made  diligent  search  for  the  father  of 
the  child  without  success,  and  then  resided  with  the 
uncle  up  to  the  present  time.  The  defendant's  testa- 
tor, the  f  ath-er  of  the  child,  died  December  21, 1917,  in 
Queens  county,  leaving  a  will  dated  Jun-e  11,  1$14, 
which  was  duly  probated  and  letters  testamentary 
were  issued  to  the  defendant  executor  on  August  9, 
1918,  which  will  made  no  provision  for  his  child.  The 
estate  of  the  decedent  amounted  to  $19,342.94  of  which 
$3,750  represents  the  proceeds  of  the  sale  of  the  prem- 
ises at  101  North  Ninth  street,  Brooklyn,  by  the  execu- 
tor in  December,  1919.  A  verified  proof  of  claim  wa« 
duly  served  upon  th«  defendant  on  June  14,  1919,  fox; 


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228  Michaels  v.  Flach. 

Supreme  Court,  January,  1921.  [Vol.  114. 

the  sum  of  $2,218,  but  said  claim  wa»  neither  paid  nor 
rejected  and  no  notice  was  taken  of  it  untQ  it  was 
referred  to  in  Schedule  G  of  th-e  account  filed  March 
16,  1920.  The  action  upon  said  claim  wa«  brought  by 
the  service  of  a  summons  and  complaint  on  the  defend- 
ant on  January  3,  1920,  and  the  defendant's  answer 
set  up  the  separation  agreement  as  a  bar.  The  defend- 
ant filed  his  petition  and  account  for  a  judicial  settle- 
ment by  the  Surrogate's  Coxwrt  of  Queens  county  on 
March  16,  1920,  but  did  not  make  the  plaintiff  a  party 
to  said  accounting,  and  no  notice  of  said  accounting 
was  served  upon  the  plaintiff  up  to  the  date  of  the 
trial  of  this  action.  The  said  petition  did  not  recognize 
the  plaintiff  as  a  creditor  of  the  estate  although  it 
provided  that  aU  creditors  ehoxdd  be  set  forth  in 
Schedule  D  of  the  account  as  filed,  and  it  did  not  con- 
tain the  name  of  the  plaintiff  as  a  creditor  although 
his  claim  had  been  served  on  June  14,  1919,  and  it 
distinctly  stated  that  there  were  no  creditors.  Sched- 
ule G  of  the  account  merely  referred  to  the  action  now 
pending  between  the  plaintiff  and  the  defendant  with- 
out stating  whether  the  claim  was  accepted  or  rejected. 
It  simply  stated  that  the  said  *'  action  is  now  awaiting 
trial."  While  the  verified  petition  in  the  aoc5ounting 
proceedings  states  that  a  notice  for  creditors  to  present 
claims  was  didy  published  pursuant  to  an  order  of 
the  Surrogate's  Court  of  Queens  county  and  that  all 
claims  presented  had  been  duly  adjusted  and  paid,  the 
verified  account  accompanying  the  petition  and  filed 
on  the  same  day  with  the  petition,  March  16,  1920, 
specifically  struck  out  the  allegation  of  a  due  and 
proper  advertisement  for  the  presen-tation  of  claims 
by  the  creditors  as  required*  by  section  2677  of  the 
Code. 

The  parties  waived  the  determination  of  the  jury 
on  the  facts  and  defendant  moved  to  diismisB  the  com- 


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Michaels  v.  Flach.  229 

Misc.]  Supreme  Courts  January,  1921. 

plaint  and  for  the  direction  of  a  verdict  npon  the 
grounds  that  th-e  complaint  does  not  constitute  a 
eaxtse  of  action;  that  the  Surrogate's  Court  has  exclu- 
sive jurisdiction  and  that  the  separation  agreement 
for  the  consideration  named  •  therein  released  the 
father  from  all  cJaims  such  as  that  sued  upon. 

The  theory  of  the  complaint  is  that  the  debt  sued 
upon  was  based  upon  a  claim  or  debt  against  the 
deceased  as  provided  for  in  atrticle  2,  sections  2680 
and  2681  of  the  Code  of  Civil  Procedure.  The  respon- 
sibility for  the  support  of  the  infant  son  after  the 
death  of  the  mother  created  an  obligation  which  rested 
upon  the  decedent  during  the  period  from  the  decease 
of  his  wife  until  the  child  attained  his  majority.  The 
liability  for  the  maintenance  of  the  child  was  imposed 
primarily  upon  the  father  and  even  though  the  mother 
asffumed  to  maintain  the  said  infant  during  hefr  life- 
time under  the  terms  of  the  separation  agreement,  the 
obligation  continued  against  the  father  after  the 
decease  of  the  mother  at  which  time  the  child  was  but 
nine  years  old,  and  it  continued  until  he  becomes  of 
age.  The  law  raises  an  implied  promise  to  pay  where 
services  are  necessary  for  the  child,  although  rendered 
without  actual  request  of  the  parent.  The  complaint 
alleges  and  it  is  conceded  that  upon  the  death  of  the 
mother  a  diligent  search  was  made  by  the  plaintiff 
for  the  father  of  the  boy,  but  he  could  not  be  located. 
This  obviates  the  necessity  of  an  actual  demand.  The 
father  abandoned  the  child  as  he  never  conamunicated 
with  him  from  the  time  of  the  separation  agreement, 
nor  inquired  as  to  his  whereabouts  at  any  time  before 
or  after  the  death  of  the  mother  and  wholly  failed  to 
provide  for  the  support  of  the  infant  son  after  the 
death  of  the  mother,  which  was  an  omission  to  the 
prejudice  of  the  infant  by  the  father  who  was  under 


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230  Michaels  v.  Flagh. 

Supreme  Court,  JanQary,  1921.  [VoL  114. 

an  obligation  to  erupport  hie  eon.    The  complaint^ 
therefore,  ooiusrtdtates  a  oan^e  of  action. 

PlaiQtiff 'fl  proof  of  claim  wa»  duly  served  on  Jnne 
14, 1919,  and  altibongh  the  executor  did  not  file  hi»  peti- 
tion and  account  until  March  16, 1920,  he  did  not  either 
accept  or  reject  the  claim,  nor  did  he  take  any  action 
whatsoever  upon  it.  Section  2681  of  the  Code  deprives 
a  claimant  of  the  right  of  action  iu  the  Supr^ne  Conrt 
only  where  the  executor  fulfills  the  dnty  imposed  upon 
him  in  thie  section,  by  rejecting  the  claim  and  serving 
notice  of  rejection.  Former  sfection  1822  of  the  Code 
and  section  2681  which  has  superseded  it  are  highly 
penal  and  drastic  statutes  and  should  be  strictly  con- 
strued. A  surrogate  can  exercise  only  snch  jurisdic- 
tion as  has  been  specially  conferred  by  statute, 
together  with  those  incidental  powers  which  may  be 
requisite  to  effectually  carry  out  the  juri-sdiction 
actuially  granted.  Those  claiming  under  the  order  or 
decree  of  the  surrogate  must  ^ow  affirmatively  his 
authority  to  make  it  and  the  facts  which  give  him 
jurisdiction.  Previous  to  the  amendment  of  section 
1822  by  chapter  595  of  the  Laws  of  1895,  a  surrogate 
had  no  jurisdiction  to  hear  and  determine  a  rejected 
or  di'sputed  claim  against  the  estate  of  a  decedent  and 
since  that  act  went  into  effect  the  courts  have  insisted 
that  only  by  a  strict  compliance  with  the  provisions 
of  the  law  could  there  be  any  jurisdiction  of  the  surro- 
gate over  a  disputed  claim.  Matter  of  Martin,  211 
N.  Y.  328.  The  legislature  did  not  change  the  rem-edy 
of  a  claimant  where  there  was  no  outright  rejection 
by  the  executor  and  neither  the  plaintiff's  nor  the 
defendant's  substantive  rights  were  affected  thereby. 
Carpenter  v.  Netvland,  92  Misc.  Eep.  596.  The  statute 
expressly  reserves  the  right  of  a  claimant  to  bring  an 
action  where  no  rejection  has  been  made  or  served. 
There  was  no  rejection  in  this  case;  on  the  contrary 


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Michaels  v.  FiiACH.  231 

Misc.]  Supreme  Court,  January,  1921. 

the  execuix)r  by  his  eilenoe  and  failure  to  acknowledge 
the  olaim  in  any  way  from  the  time  of  the  service  of 
the  claim  June  14,  1919,  left  the  claimant  under  the 
belief  that  the  claim  might  be  admitted  and  paid.  In 
the  axxjonnting  filed  on  March  16,  1920,  by  the  execu- 
tor, he  sets  forth  in  Schedule  G  th^t  the  action  for  the 
collection  of  the  claim  in  the  Supreme  Court  is  then 
pending  and  that  the  accounting  proceeding  is  await- 
ing the  dietermination  of  that  suit,  but  he  does  not 
include  the  plaintiff  as  a  creditor  in  either  the  petition 
or  the  account  and  does  not  make  him  a  party  to  the 
proceeding.  Section  2680  does  not  apply  because  it 
relates  to  claims  admitted  and  allowed  by  the  executor. 
It  is  only  by  a  rejection  of  the  claim  under  section 
2681  of  the  Code  that  a  claimant  is  compelled  to  either 
bring  an  action  within  three  monthsi  or  submit  his 
claim  to  the  Surrogate's  Court  in  the  accounting  pro- 
ceeding. Unless  the  claim  is  rejected  by  the  executor 
the  claiman't  has  an  absolute  right  to  bring  an  action 
in  the  Supreme  Court  and  its  jurisdiction  is  beyond 
question.  The  claim  of  the  defendant  that  this  court 
is  without  jurisdiction  under  sections  2680  and  2681 
of  the  Code,  is  untenable. 

The  release  given  by  Evelyn  Kienzle  to  her  husband, 
Christopher  Kienzle,  and  set  forth  in  the  3d  para- 
graph of  the  separation  agreement,  provided  that  the 
amount  paid  to  the  mother  was  for  the  support,  main- 
tenance and  education  of  the  infant  during  her  natural 
life.  Even  if  it  be  maintained  that  by  a  strict  interpre- 
tation of  the  language  of  thi's  paragraph  of  the  said 
agreement  it  also  purported  to  release  the  father  from 
the  obligation  to  maintain  and  support  the  child  after 
the  death  of  the  mother,  it  was  clearly  beyond  the 
jKXwer  of  the  mother  to  make  any  binding  agreement 
releasing  the  father  from  the  support  and  maintenance 
of  the  child  after  the  death  of  the  mother  es  the  law 


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232  Michaels  t;.  Flach. 

Supreme  Court,  January,  1921.  [Vol.  114. 

oast  that  responsibility  upon  the  father  up  to  the 
infant's  majority.  The  provisions  of  the  4th  para- 
graph of  the  siaid  oeparajtion  agreement  did  not  release 
iJhe  father  from  the  support  of  the  child  beyond  the 
lifetime  of  the  mother,  even  though  it  specifically  pro- 
vide® that  the  wife  should  retain  her  dower  interest 
in  the  premises  at  No.  101  North  Ninth  street.  The 
dower  interest  of  Evelyn  Kienzle  in  the  said  premises 
ceased  with  her  death  on  November  9,  1911.  The  one- 
third  of  the  purchase  price  on  the  sale  of  the  said 
premises  by  the  father  would  be  equivalent  to  the 
value  of  the  said  dower  and  therefore  there  was  no 
consideration  paid  by  the  father  under  this  4th 
paragraph  of  the  agreement,  and  in  view  of  the  fact 
that  the  property  was  not  sold  by  the  father  during  his 
lifetime  this  part  of  the  agreement  was  never  effec- 
tuated. The  sum  of  $4,028  given  by  the  father  to  the 
mother  on  May  31, 1904,  for  the  support  of  herself  and 
their  child,  was  evidently  all  expended  at  the  time  of 
the  mother's  death  on  November  9,  1911,  as  it  appears 
in  the  affidavit  of  the  plaintiff  thait  the  mother  did  not 
leave  sufficient  funds  to  bury  her.  Hence  the  support 
of  the  infant  after  the  death  of  the  mother  could  not 
be  paid  out  of  her  estate  since  there  was  no  part  of  th-) 
specific  sum  of  $4,028  given  by  the  father  to  the  mother 
at  the  time  of  making  the  separation  agreement 
remaining  unexpended  at  her  death.  The  obligation 
rests  upon  the  father  to  support  his  own  infant  son, 
even  though  the  infant  has  an  estate  of  his  own.  Good- 
man  v.  Alexander,  165  N.  Y.  289;  Murphy  v.  Holmes^  . 
87  App.  Div.  369.  The  separation  agreement  did  not 
release  the  father  from  plaintiff's  claim  and  it  is  not  a 
bar  to  this  action.  Judgment  for  plaintiff  for  $2,218 
with  interest  from  June  10, 1918,  and  costs. 

Judgment  for  plaintiff. 


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Dale  Engineering  Co.  v.  State  of  New  York.    233 

Mise.]  Court  of  Claims,  January,  1921. 


Dale  Enginebring  Company,  Claimant,  v.  The  Statb 
OF  New  York. 

Claim  No.  16176. 

(State  of  New  York,  Court  of  Claims,  January,  1921.) 

Ooiuititiitional  law— nnconstitiitionality  of  Laws  of  1919,  chap. 
459  —  contracts  — Btatates  —  jmiadiction  —  Oonrt  of  Olainu 
—  State  Oonatitation,  art.  m,  §§  19,  28. 

Chapter  459  of  the  Laws  of  1919,  in  terms  conferring  upon 
tiie  Court  of  Claims  jurisdiction  to  hear  claims  of  certain  high- 
way contractors  for  losses  due  to  increased  cost  of  labor, 
material  and  transportation  of  material  resulting  from  war 
conditions,  is  in  violation  of  section  19  of  article  III  of  the 
State  Constitution  providing  that  the  legislature  shall  neither 
audit  nor  aUow  any  private  claim  or  account  against  the  state; 
and  it  is  also  in  violation  of  section  28  of  the  same  article 
providing  that  the  legislature  shall  not  grant  any  extra  com- 
I>ensation  to  any  contractor.     (Smith,  J.,  dissents.) 

An  advertisement  for  letting  of  a  highway  contract  was 
published  once  between  Apnl  6  and  April  17,  1917,  namely, 
on  April  16,  1917.  The  date  therein  advertised  for  the  letting 
was  May  7,  1917.  Claimant's  bid  was  dated  May  7,  1917,  and 
the  contract  was  executed  on  May  9,  1917.  Beld,  that  the 
contract  did  not  come  within  the  terms  of  chapter  459  of  the 
Laws  of  1919. 

The  words  in  section  6  of  the  act  '' advertised  for  letting 
between  April  6,  1917,  and  April  17,  1917,"  relate  to  the 
advertised  date  of  letting  and  not  to  the  date  of  advertising. 

Claim  against  the  state  upon  a  contract  for  the  im- 
provement of  a  highway. 

Hugh  J.  O'Brien  (T.  Harvey  Ferris,  C.  B.  Dewey, 
of  counsel),  for  claimant. 


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234    Dale  Engineering  Co.  v.  State  of  New  York. 

Court  of  Claimfl,  January,  1921.  [Vol.  114. 

Arthur  E.  Rose,  third  deputy  attorney-general,  for 
State  of  New  York. 

AcKERSON,  P.  J.  On  the  9th  d«ay  of  May,  1917,  the 
above  named  claimant,  the  Dale  Engineering  Com- 
pany, enitered  into  a  contract  with  the  state  cf  New 
York  through  the  commission  of  highways,  whereby 
Baid  claimant  agreed  to  improve  a  county  highway  in 
the  county  of  Onondaga  known  sb  Jordan-Baldwine- 
ville,  part  1,  county  highway  1506,  in  accordance  with 
the  terms  of  said  contract,  and  with  the  plans  and 
specifications  accompanying  the  same  for  the  gross 
aggregate  item  prices  of  $63,996.75.  The  claimant 
completed  the  work  under  this  contract,  the  highway 
was  accepted  by  the  state,  and  payment  made  therefor 
to  the  claimant  by  the  state  prior  to  May  7, 1919.  The 
claimant  alleges,  and  there  is  evidence  in  the  case 
which  tends  to  prove,  that  by  reason  of  the  declaration 
of  war  between  the  United  States  of  America  and 
the  Imperial  German  government,  and  the  acts  of 
the  government  of  the  United  States  and  of  the  state 
of  New  York  consequent  upon  such  declaration  of  war, 
and  the  conduct  of  such  war,  the  cost  of  performance 
of  the  said  contract  to  the  claimant,  the  contractor, 
for  labor,  material  and  the  transportation  of  material 
was  increased  in  the  sum  of  $27,405.98.  It  can  readily 
be  conceded  that  owing  to  the  world  war  above  referred 
to  the  claimant  was  confronted  with  a  situation  which 
made  it  much  more  difficult  and  expensive  to  perform 
its  contract  than  would  otherwise  have  been  the  case, 
but  this  in  and  of  itself  would  have  created  neither  a 
legal  nor  a  moral  liability  on  the  part  of  the  state  to 
pay  to  this  claimant  any  other  or  different  compensa- 
tion than  that  mentioned  in  the  contract  which  was 
entered  into  on  the  9th  day  of  May,  1917.    Cohmbus 


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Dale  Engineering  Co.  v.  State  of  New  York.    235 

Misc.]  Court  of  Claims,  January,  192L 

By.  Power  <&  Light  Co.  v.  City  of  Columbus,  249  U.  S. 
399. 

The  legisOsature  of  thi-s  state,  however,  by  chapter 
459  of  the  Liaws  of  1919,  endeavored  to  relieve  to  eome 
extent  the  alleged  nnfortiumte  condition  in  which 
many  contractors  with  the  state  found  them'selves  by 
reason  of  the  increased  cost  to  them  of  labor,  material 
and  transportation  caused  by  the  said  war  after  they 
had  entered  into  their  contracts  with  the  state.  This 
act  was  entitled  **An  act  authorizing  the  termination 
of  certain  highway  contracts,  oonfeiring  jurisdiction 
upon  the  court  of  claims  to  hear  and  determine  claims 
and  make  awards  for  increased  costs  incurred  in  war 
contracts,  and  making  an  appropriation  for  the  com- 
pletion of  unfinished  work."  It  became  a  law  on  the 
7th  day  of  May,  1919. 

By  section  1  of  this  act,  **  war  contracts  "  were 
design*ated  as  those  which  were  made  and  executed 
prior  to  the  6th  day  of  April,  1917,  the  date  of  the 
declaration  of  war  between  the  United  States  of 
America  and  the  Imperial  Germian  government,  or 
those  which  were  entered  into  after  that  date  on  bids 
submitted  to  the  highway  commission  before  said 
April  sixth.  Section  6  of  the  act  extends  the  benefit 
of  the  act  to  still  another  class  of  contracts,  namely, 
those  contracts,  the  actual  letting  of  which  took  place 
after  the  declaration  of  war  on  April  6, 1917,  but  before 
the  introduction  of  the  Draft  Act  in  congress  on  the 
17th  day  of  April,  1917. 

It  will  be  seen,  therefore,  that  the  whole  theory  of 
this  legislation  was  to  compensate  a  contractor  for  the 
loss  which  he  had  suffered  in  performing  a  contract 
which  he  had  entered  into  with  the  state  before  he  had 
notice  that  the  country  was  going  to  be  involved  in 
war  during  the  time  of  the  performance  of  the  con- 


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236    Dale  Engineering  Co.  v.  State  of  New  York. 

Court  of  Claims,  January,  1921.  IVoL  114 

tract,  or  at  least  before  he  had  notice  of  the  drastic 
provisions  of  the  Draft  Act  which  wonld  necessarily 
very  much  limit  his  opportunities  to  get  the  necessary 
labor  to  perform  his  contract.  It  was  apparently  not 
the  intention  of  the  legislature  to  extend  any  relief  to 
a  contractor  who,  after  war  had  been  declared  and 
after  the  Draft  Act  had  been  introduced  in  congress, 
deliberately  and  with  his  eyes  open,  with  full  taiowl- 
edge  that  the  country  would  be  in  turmoil  and  that  the 
cost  of  labor  and  material  and  transportation  would 
necessarily  greatly  increase  in  value,  entered  into  a 
contract  with  the  state  to  perform  the  necessary  labor 
and  furnish  the  necessary  material  to  build  a  highway. 
When  a  man  has  notice  of  those  things  which,  it  is  evi- 
dent, must  greatly  increase  the  difficulties  of  his  task, 
he  has  no  one  to  blame  but  himself  if  he  gets  into 
trouble.  The  state,  under  such  circumstances,  could 
not  be  considered  under  any  kind  of  an  obligation  to 
assist  him.  The  contract  in  question  was  not  made 
prior  to  April  6,  1917;  it  was  not  made  upon  bids 
submitted  prior  to  April  6,  1917 ;  it  was  not  canceled 
or  abrogated  for  non-performance,  but  was  fully  com- 
pleted by  the  claimant  as  mentioned  aforesaid.  This 
contract,  therefore,  does  not  come  within  the  pro- 
visions of  section  1  of  chapter  459  of  the  Laws  of  1919. 
This  contract  was  not  let  between  April  6,  1917,  the 
date  of  the  declaration  of  war,  and  April  17, 1917,  the 
date  of  the  introduction  of  the  Draft  Act  in  congress, 
and,  therefore,  does  not  come  within  the  provisions  of 
section  6  of  the  aforesaid  act.  But  this  claimant  on 
the  9th  day  of  May,  1917,  more  than  a  month  after  the 
declaration  of  war  between  the  United  States  of 
America  and  the  Imperial  German  government,  and 
more  than  three  weeks  after  the  17th  day  of  April, 
1917,  when  the  aforesaid  Draft  Act  was  introduced  in 


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Dale  Engikeebinq  Co.  v.  State  of  New  Yobk.    237 

MiM.]  Court  of  Claims,  January,  192L 

congress,  signed  and  executed  the  contract  in  question 
with  the  state  by  which  he  obligated  himself  to  furnish 
the  necessary  labor  and  material  to  build  the  highway 
in  question.  The  officers  of  this  claimant  were  then 
in  full  possession  of  the  facts  which  must  have  made 
it  plain  to  them  that  the  performance  of  their  con- 
tract would  be  accompanied  with  great  difficulty  and 
with  greatly  increased  expense  on  all  items  of  labor, 
material  and  transportation,  and  it  was  not  the  inten- 
tion of  the  legislature  that  contractors,  who  were  will- 
ing to  take  those  chances  and  who  signed  their  con- 
tracts with  full  knowledge  of  those  facts,  should  later 
on  be  permitted  to  come  in  and  make  any  claim  against 
the  state  for  the  increased  cost  which  they  ought  to 
have  anticipated  when  they  executed  their  contracts. 
And,  therefore,  we  say,  without  any  reference  to  the 
constitutionality  of  chapter  459  of  the  Laws  of  1919, 
that  the  contract  in  question  does  not  come  within  its 
terms  and  does  not  give  this  court,  therefore,  any 
jurisdiction  of  a  claim  against  the  state  based  upon 
such  a  contract 

The  particular  language  upon  which  the  claimant 
relies,  however,  and  which  it  contends  brings  this 
claim  within  the  benefit  of  the  act,  is  found  in  section 
6  in  these  words:  '*  Including  contracts  advertised  for 
letting  between  April  6th,  1917,  and  April  17, 1917,  on 
estimates  prepared  by  the  Department  of  Highways 
prior  to  April  6th,  1917.'*  The  advertisement  which 
resulted  in  the  letting  of  this  contract  to  claimant  was 
published  once  between  April  6  and  April  17,  1917, 
viz.,  on  April  16,  1917.  The  date  therein  advertised 
for  the  letting  of  the  contract  was  thereby  fixed  as 
May  7, 1917.  Claimant's  bid  or  proposal,  pursuant  to 
such  advertisement,  was- dated  May  7,  1917,  and  the 
contract  bears  date  May  9,  1917. 


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238    Dale  Engineering  Co.  v.  State  op  New  York. 
Court  of  Claims,  January,  1921.  [Vol-  H^. 

Claimant  claims  that  it  is  the  fact  of  the  publica- 
tion of  the  advertisement  between  April  6  and  17, 1917, 
which  was  intended  by  the  legislature  to  be  the  test  of 
whether  a  contract  was  to  be  entitled  to  the  benefit  of 
the  act  under  the  language  above  quoted. 

I  do  not  agree  with  that  construction  of  the  statute. 
In  my  view,  the  words  *^  between  April  6th,  1917  and 
April  17th,  1917  ^*  relate  to  the  advertised  date  of 
letting  and  not  to  the  date  of  advertising.  This  seems 
to  me  to  be  the  plain  meaning  of  the  language,  apart 
from  any  other  consideration,  and  is  supported  by  the 
situation  which  confronted  the  legislature  when  the 
act  in  question  was  pending  before  it.  April  6,  1917, 
was  the  date  of  declaration  of  war  between  the  United 
States  and  the  Imperial  German  government;  April 
17,  1917,  was  the  date  of  introduction  in  the  senate  of 
the  United  States  of  the  Federal  Draft  Act,  of  which 
fact  judicial  notice  is  taken.  It  was  the  passage  and  the 
consequences  of  the  enforcement  of  the  Federal  Draft 
Act  which  claimant  contends  so  disastrously  affected 
the  cost  of  performance  of  large  construction  con- 
tracts. No  other  reason  is  apparent  or  assigned  for 
the  fixing  by  the  legislature  of  the  period  between  April 
6  and  April  17,  1917,  than  the  facts  of  the  declaration 
of  war  and  the  introduction  of  the  Federal  Draft  Act, 
and  it  is  probable  that  that  period  was  fixed  with  ref- 
erence to  those  two  events. 

The  freedom  of  action  of  claimant  and  other  con- 
tractors was  not  and  could  not  be  affected  by  the  mere 
fact  of  advertising  a  notice  of  the  letting  of  highway 
contracts  or  by  the  dates  of  the  publication  of  such 
advertising.  The  date  advertised  for  letting,  however, 
was  of  great  importance  to  the  contractor,  for  on  or 
before  that  date  his  proposal  must  have  been  duly 
formulated  and  filed  with  the  highway  commission, 


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Dale  Engineering  Co.  v.  State  of  New  York.  239 
Misc.]  Court  of  Claims,  January,  1921. 

together  with  cash  or  a  certified  check  equal  to  five 
per  cent  of  the  amount  of  the  proposal  as  required  in 
the  information  for  bidders  and  in  the  public  adver- 
tisement. If  between  the  date  of  the  declaration  of 
war  and  the  date  of  the  introduction  in  the  senate  of 
the  United  States  of  the  Federal  Draft  Act,  a  con- 
tractor had  obligated  himself  by  the  filing  of  a  pro- 
posal accompanied  by  cash  or  a  certified  check,  the 
legislature  evidently  concluded  there  was  some  justice 
and  equity  in  affording  him  relief  from  the  conse- 
quences of  so  important  a  fact  as  the  Draft  Act,  of 
which  he  had  and  could  have  had  no  knowledge  at  the 
time  of  making  his  proposal,  and  this,  I  conclude,  is 
what  was  intended  by  the  legislature. 

If  this  is  the  correct  construction  of  the  statute, 
claimant  is  npt  within  the  benefit  sought  to  be  con- 
ferred by  it,  for  the  reason  that  the  advei-tised  date 
of  the  letting  of  this  contract  was  May  7,  1917,  on 
which  date  claimant's  proposal  was  dated  and  sub- 
mitted, and,  therefore,  I  conclude  that  the  court  has 
not  jurisdiction  of  this  claim. 

The  state  has  not  raised  this  question  of  jurisdiction 
nor  asked  for  the  dismissal  of  the  claim  on  this 
ground.  The  court,  however,  feels  it  to  be  its  duty, 
being  of  the  opinion  that  it  is  without  legal  jurisdic- 
tion, not  to  assume  it. 

We  now  come  to  the  question  as  to  whether  this  act 
of  the  legislature  is  in  violation  of  the  provisions  of 
the  Constitution.  Section  19  of  article  III  of  the 
Constitution  reads  as  follows:  '*  The  legislature  shall 
neither  audit  nor  allow  any  private  claim  or  account 
against  the  State,  but  may  appropriate  money  to  pay 
such  claims  as  shall  have  been  audited  and  allowed* 
according  to  law.'' 

One  of  my  colleagues  in  his  opinion  holds  that  this 


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240    Dale  Engineering  Co.  v.  State  of  New  York. 

Court  of  Claims,  January,  1921.  [Vol.114. 

act  of  the  legislature  is  contrary  to  the  provisions  of 
that  portion  of  the  Constitution.  I  agree  with  him  and 
concur  in  the  following  language  which  he  uses:  '*  In 
the  case  at  bar  the  Legislature  not  only  allowed  the 
daim,  but  directed  the  Court  of  Claims  to  compute 
the  amount  found  due  under  such  conditions  and 
award  judgment,  the  language  of  the  act  being  that 
the  Court  of  Claims  shall  determine  the  amount  of  the 
difference  between  the  contract  and  the  cost  price,  and 
award  judgment.  The  Legislature  cannot  do  indi- 
rectly what  it  cannot  do  directly.*' 

The  act  places  no  burden  of  responsibility  upon  the 
court  to  determine  either  the  legal  liability  or  the 
moral  obligation  of  the  state.  That  has  been  deter- 
mined by  the  legislature.  All  that  is  left  for  the  court 
to  do  is  to  subtract  the  amount  which  would  represent 
the  cost  of  performance  of  the  contract  before  the  war 
from  the  amount  which  represents  the  actual  cost  of 
the  performance  of  the  contract  and  give  the  claimant 
an  award  for  such  proportion  of  that  as  under  the 
terms  of  the  act  should  be  paid  by  the  state.  There 
is  absolutely  nothing  judicial  about  the  act  that  the 
court  is  called  upon  to  perform.  It  is  entirely  admin- 
istrative and  clerical.  Such  being  the  case,  the  act  is 
clearly  in  contravention  of  section  19  of  article  III  of 
the  Constitution. 

We  now  come,  however,  to  a  more  serious  question 
than  either  of  those  considered  above.  This  claim  is 
one  for  extra  compensation  to  this  contractor.  It  is 
conceded  to  be  such  by  both  the  state  and  the  claim- 
ant. The  Constitution,  by  section  28  of  article  m, 
provides  as  follows:  '*  The  legislature  shall  not,  nor 
shall  the  common  council  of  any  city,  nor  any  board 
of  supervisors,  grant  any  extra  compensation  to  any 
public  officer,  servant,  agent  or  contractor.** 

This  is  a  solemn  prohibition  by  the  fundamental 


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Dale  Engineering  Co.  v.  State  of  New  York.     241 

Mise.]  Court  of  Claims,  Jannary,  1921. 

law  of  this  state,  placed  there  for  the  protection  of 
'  the  funds  of  the  people  of  the  state,  and  which  is  abso- 
lutely controlling  not  only  upon  the  legislature,  but 
upon  all  the  courts  of  the  state.  The  claimant's  coun- 
sel seems  to  think  that  the  difficulty  with  which  he  is 
confronted  in  this  provision  of  the  Constitution  can 
be  easily  evad-ed  by  the  contention  that  it  is  not  the 
legislature  which  is  granting  the  extra  oompensation, 
but  that  it  is  the  Court  of  Claims  which  is  called  ui>on 
to  grant  the  extra  compensation.  Again  I  refer  to  the 
language  of  my  colleague,  above  quoted,  wherein  he 
says:  **  The  Legislature  cannot  do  indirectly  what  it 
cannot  do  directly. ' '  The  Court  of  Claims  of  this  state 
is  a  creature  of  the  legislature.  It  was  instituted  by  a 
legislative  act.  The  Connrtitution  prohibits  the  legis- 
lature from  awarding  extra  compensation  to  a  con- 
tractor. And  it  contains  no  language  authorizing  the 
creation  of  a  tribunal  to  award  extra  compensation. 
The  provisions  of  the  Constitution  are  not  to  be  so 
easily  evaded.  If  they  could  be,  they  would  be  of  but 
little  value.  Our  form  of  government  can  continue  to 
exist  only  by  maintaining  in  its  integrity  the  Consti- 
tution upon  which  it  is  based.  The  Constitution  can 
be  maintained  only  by  courts  and  l^slatures  which 
have  the  firmness  to  resist  the  assaults  made  upon  it 
for  either  i>erison«l  gain,  or  the  public  benefit,  or  in  the 
cause  of  pure  philanthropy.  Such  assaults  must  be 
overcome  whether  the  motives  which  inspire  them  are 
good  or  bad. 

The  state  of  Wisconsin  has  a  similar  clause  to  this 
in  its  Constitution.  Section  26  of  article  IV  of  the 
Oonistitution  of  the  state  of  Wisconsin  declares  that 
ftihe  legislature  shall  never  grant  any  extra  compen- 
sation to  any  public  contractor  after  the  contract  shall 
be  entered  into.  The  Supreme  Court  of  that  state,  in 
the  case  of  Carpenter  v.  State,  39  Wis.  271,  uses  lan- 
16 


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242    Dale  Engineering  Co.  v.  State  of  New  York. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

gaage  which  may  well  be  borne  in  mind  in  passing  on 
the  present  case.    The  court  there  said: 

*'  For,  in  any  construction  of  the  statute  before  us,  it 
aseumes  to  compensate  the  plaintiff  for  all  work  and 
material  und^r  his  contract,  not  at  the  prices  of  the 
contract  itself,  but  at  prices  ascertained  dehors  the 
contract  and  by  a  rule  wholly  ind^pend'ent  of  the  con- 
tract. Smch  compensation  of  a  public  contractor  is 
prohibited  by  the  Constitution.^^    (p.  282.) 

**  The  esact  measure  of  his  right  m  determined  abso- 
lately  by  his  contract,  under  the  constitution;  and 
there  exists  mo  where  a  discretion  to  vary  if  (p. 
283.) 

"  Legislative  history  i>oints  and  sanctions  the  policy 
of  the  constitution.  It  indicates  the  purpose  of  the 
eedtion  to  eave  the  legislature  from  the  importunity  of 
public  contractors  and  servants,  and  the  treasury  from 
the  discretion  of  the  lf:gislature  in  their  favor;  to  limit 
contractors  with  the  state,  beyond  pretense  and  device, 
to  the  precise  compensation  fixed  by  their  contracts. 
Under  this  salutary  restraint,  no  misfortune  or 
rapacity  can  ever  avail  in  a  court  of  justice,  by  any 
artifice  of  circuity,  to  change  the  rule  of  recovery  on  a 
contract  with  the  state.  Where  there  is  no  fraud  or 
mistake  which  would  authorize  a  court  to  avoid  or 
reform  any  contract,  the  contract  itself  must  govern. 
If  the  compensation  be  too  high,  the  state  must  bear 
the  loss ;  if  too  low,  the  contractor  must  suffer  it.  The 
constitution  leaves  no  room  to  legislature  or  court 
for  equitable  considerations  of  quantum  meruit.  We 
cannot  say  that  the  statute  before  us  is  not  equitable ; 
but  we  do  hold  that  it  is  not  constitutional**  (pp. 
284-285). 

These  words  of  the  Wisconsin  judge  apply  here  with 
great  force.  This  statute  before  u»  is  remedial  in  its 
naiturei  and  the  end  aimed  at  is  undoubtedly  justifiable, 


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Dale  Engineering  Co.  v.  State  of  New  Yobk.    243 

Misc.]  Court  of  Clami%  January,  192L 

but  that  it  is  in  defiance  of  the  plain  mandates  of  the 
Constitution  is  sufficient  to  work  its  condemnation,  no 
matter  how  landiable  its  purpose. 

That  the  legislature  cannot  evade  the  prohibition 
placed  ujwn  it  by  the  Constitution,  by  creating  a 
tribunal,  and  then,  without  constitutional  authority, 
delegating  power  to  that  tribunal  to  do  what  it  cannot 
do  itself,  seems  too  plain  for  argument.  Section  19  of 
article  HI  gives  the  legislature  such  constitutional 
authority  but  section  28  does  not.  The  Court  of 
Appeals  of  this  state,  however,  has  clearly  established 
that  principle  in  a  nmnber  of  cases.  Judge  Allen  in  a 
very  learned  opinion  in  the  case  of  People  ex  rel. 
Bolton  V.  Albertson,  55  N.  T.  55,  used  this  very  sig- 
nificant language:  **A  written  Constitution  must  be 
interpreted  aind  effect  given  to  it  as  the  paramount  law 
of  the  land,  equally  obligatory  upon  the  legielature  as 
upon  otiier  departments  of  government  and  individual 
eitizens;  according  to  its  spirit  and  the  intent  of  its 
f  ramers,  as  indicated  by  its  terms.  An  act  violating 
the  true  intent  and  meaning  of  the  instrument, 
although  not  within  the  letter,  is  as  much  withdoi  tbe 
purview  and  effect  of  a  prohibition  as  if  within  the 
strict  letter;  and  an  act  in  evasion  of  the  terms  of  the 
Conetitution,  as  properly  interpreted  and  understood, 
and  frustrating  its  general  and  <dearly  expressed  or 
necessarily  implied  purpose,  is  as  clearly  void  as  if 
in  express  terms  forbidden.  A  thing  within  the  intent 
of  a  Constitution  or  statutory  enactment  is,  for  all 
purposes,  to  be  regarded  as  witiiin  the  words  and  terms 
of  the  law.  A  written  Constitution  would  be  of  little 
avail  as  a  practical  and  useful  restraint  ui>on  the  dif- 
ferent departments  of  government,  if  a  literal  reading 
only  was  to  be  given  it,  to  the  exclusion  of  all  neces- 
sary implication,  and  the  clear  intent  ignored,  and 
slight  evasions  or  acts,  palpably  in  evasion  of  its  spirit^ 


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244    Dale  Engineering  Co.  v.  State  of  New  York. 
Court  of  Claims,  January,  1921.  [Vol.  114. 

i 

should  be  midtained  ss  not  repugimiit  to  it.  The 
restraints  of  the  Constitution  upon  the  several  depart- 
ments, among  which  the  various  powers  of  government 
are  distributed,  cannot  be  lessened  or  diminished  by 
inference  and  implication;  and  usurpations  of  power, 
or  the  exercise  of  power  in  disregard  of  the  exprese 
provision  or  plain  intent  of  the  instrument,  as  neces- 
sarily implied  from  all  its  terms,  cannot  be  sustained 
under  the  pretence  of  a  liberal  or  enlightened  inter- 
pretation, or  in  deference  to  the  judgment  of  the  legis- 
lature, or  some  supposed  necessity,  the  result  of  a 
changed  condition  of  affairs.  (1  Kent's  Com.  162; 
Barto  V.  Himrod,  4  Seld.  483;  Taylor  v.  Porter,  4  Hill, 
144;  Warner  v.  People.  2  Den.  272;  People  v.  N.  Y.  C. 
R.  R.  Co.,  24  N.  T.  485;  Schenectady  Observatory  v. 
^Z/en,  42  id.  404.)  '' 

Judge  Vann,  in  the  case  of  People  ex  rel.  Burhy  v. 
Rowland,  155  N.  T.  280,  quoted  from  this  opinion  of 
Judge  Allen  approvingly  and  i!a  addition  said  on  this 
subject:  **  When  the  main  purpose  of  a  statute,  or  of 
part  of  a  statute,  is  to  evade  the  Constitution  by  effect- 
ing indirectly  that  which  cannot  be  done  directly,  the 
act  is  to  that  extent  void,  beoauae  it  violates  the  spirit 
of  the  fundamental  law.  Otherwise  the  Constitution 
would  furnish  frail  protection  to  the  citizen,  for  it 
would  be  at  the  mercy  of  ingenious  efforts  to  circum- 
vent its  object  and  to  defeat  its  commands.*^ 

True  it  is,  therefore,  that  the  legislature  cannot  do 
indirectly  that  which  it  is  prohibited  from  doing 
directly.  Otherwise  prohibitions  in  the  Constitution 
upon  the  action  of  the  l^slature  would  be  i>owerlee« 
to  aooomplifih  the  object  for  which  they  were  f  ramod. 

If  the  contention  of  the  claimant  iss  correct  that  secr 
tion  28  of  article  III  of  the  Constitution  is  a  limitation 
upon  iihe  act  of  the  legislature  alone,  then  it  is  entirely 
unnecessary  and  ia  surplusage,  becauise  section  19  of 


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Dale  Engineering  Co.  v.  State  of  New  Yobk.     245 

Misc.]  Conrt  of  Claims,  January,  1921. 

article  III  prohibits  the  legislature  from  auditing  or 
allowing  any  private  claim  or  account  against  the  state 
whether  it  be  for  extra  compeneaition  or  any  other  pur- 
pose. Section  19  then  proceeds  to  authorize  the  legist 
lature  to  appropriate  mon-ey  to  pay  euch  claims  as  ehall 
be  audited  and  allowod  aiocording  to  law.  Section  28 
of  artiok  III,  it  will  be  noted,  however,  contains  no 
provi<aion  authorizing  the  audit  and  allowance  of 
claims  for  extra  compensation  anywhere  by  anybody. 
It  prohibits  the  recognition  of  that  class  of  liabilities 
against  the  state,  and  does  not  provide  any  way  that 
extra  compensation  may  be  paid  to  any  public  con- 
tractor. In  other  words,  section  28  of  article  HI  is 
entirely  a  prohibition,  and  does  not  contain,  within 
itself,  any  reicognition  that  '*  extra  compensation  *'  can 
under  any  circumstances  be  constitutionally  granted. 
This  is  in  accordance  with  what  Judge  Bapallo  said  in 
his  opinion  in  the  case  of  Cole  v.  State  of  New  York, 
102  N.  Y.  48,  where  he  says,  at  page  54:  ^'  Where 
the  creation  of  a  particular  class  of  liabilities  is  pro- 
hibited by  the  Constitution,  it  would  of  course  be  an 
infraction  of  that  instrument  to  pass  any  law  author- 
izing their  enforcement,  but  in  the  absence  of  any 
such  prohibition  there  is  no  good  reason  why  the 
State  should  be  powerless  to  do  ju9tice,  or  to  recognize 
obligations  which  are  meritorious  and  honorary  and  to 
provide  tribunals  to  pass  upon  them."  (The  italics  are 
ours.)  In  the  case  of  Cole  v.  State  of  New  York  it 
appeared  that  the  captain  and  harbor  master  of  the 
port  of  New  York  and  their  employees  were  to  be  paid 
out  of  moneys  raised  by  a  tax  on  the  ships  in  the 
harbor  according  to  their  tonnage.  The  Supreme  Court 
of  the  United  States  held  such  law  to  be  unconstitu- 
tional, and,  therefore,  the  captain  and  harbor  master 
put  in  a  claim  to  the  state  for  their  salary  under  and  by 
virtue  of  chapter  238  of  the  Laws  of  1885  which  con- 
ferred jurisdiction  on  the  Board  of  Claims  *'  to  hear, 


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246     Dams  Engineering  Co.  v.  State  of  New  York. 
Court  of  Claims,  January,  1921.  [Vol.  114. 

r  . 

audit  and  determine  ^^  their  claims  for  such  salary. 
Judge  Bapallo  further  said,  in  reference  to  this  act: 
*'  It  grants  no  extra  compensation.  It  merely  gives 
jurisdiction  to  hear  and  determine  a  claim  for  reason- 
able compensation  for  services  rendered  in  a  case 
where  the  compensation  attempted  to  be  provided  by 
law  failed  by  reason  of  the  invalidity,  under  the  Con- 
stitution of  the  United  States,  of  the  provision  for 
such  compensation.'^    102  N.  Y.  59. 

It  seem®  plain  to  us,  therefore,  that  the  facta  oon- 
ceming  the  contract  in  question  in  this  case  do  not 
bring  it  within  the  terms  of  chapter  459  of  the  Iiaws  of 
1919,  so  that  even  if  such  act  is  a  valid  exercise  of  legis- 
lative authority,  this  court  would  have  no  jurisdiction 
of  this  claim  in  any  event.  It  further  appears  clear 
to  us,  however,  bb  has  been  well  expressied  by  Judge 
Morschaueer,  that  this  act  i«  in  direct  violation  of 
section  19  of  article  HI  of  the  Constitution  which 
prohibits  the  legislature  from  auditing  or  allowing  any 
private  claim  against  the  state.  It  is  apparent  that 
this  is  just  what  it  has  done  by  this  act.  For  this 
reason,  therefore,  if  for  no  other,  the  act  is  unconstitu- 
tional, and  the  claim  must  be  dismissed.  But  it  appears 
further  that  the  subject  upon  which  the  legislature  has 
attempted  to  act  here  has  been  placed  beyond  its 
jurisdiction  by  the  Constitution  itself.  The  prohibi- 
tion in  the  Constitution,  as  set  forth  in  section  28  of 
article  HE,  is  not  only  binding  upon  the  legislature  but 
upon  the  courts  of  the  state  as  well.  That  section 
places  it  beyond  the  power  of  the  legislature  or  of  any 
tribunal  to  make  an  award  to  any  public  contractor  in 
this  state  for  extra  compens-ation.  That  provision  of 
the  fundamental  law  can  neither  be  ignored  nor 
evaded.  Without  it,  public  contracting  would  be 
reduced  to  a  farce.  The  public  treasury  would  be  the 
oonatant  object  of  attack  by  every  public  contractor 


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DAiiB  Enqinebrikg  Co.  v.  Statb  of  New  York.    247 

Misc.]  Conrt  of  Claims,  January,  1921. 

who,  through  mi&fortane  or  ignorance,  had  lost  money 
on  his  contract.  It  would  also  be  the  constant  object 
of  attack  by  every  public  contractor  whose  rapacity 
for  money  was  strong  enough  to  throttle  his  integrity 
and  induce  him  to  conunit  fraud.  The  «tate,  it  is  true, 
may  recognize  a  moral  as  well  as  a  legal  liability.  It 
m<ay  authorize  the  Court  of  Claims  to  determine 
whether  the  claim  of  a  claimant  ie  a  moral  obligation 
against  the  state,  and,  if  so,  to  render  such  an  award 
as  shall  be  just  and  equitable  in  the  premises,  but  it 
has  no  power  either  itself  to  recognize  or  to  authorize 
the  Court  of  Claims  to  recognize  any  claim  for  extra 
compensation.  The  claim  before  us  must,  therefore,  be 
dismiased. 

Smith,  J.  (dissenting  in  part).  I  think  the  decisions 
of  the  courts  compel  the  conclusion  that,  if  chapter  459 
of  the  Laws  of  1919  is  not  in  contravention  of  section 
28  of  article  III  of  the  State  Constitution,  it  does  not 
violate  section  19  of  article  III  or  section  9  of  article 
Vin,  for  it  does  not  in  terms  or  effect  audit  or  allow 
any  claim  against  the  state,  and,  if  there  exists  against 
the  state  and  in  favor  of  the  contractors  for  whose 
relief  the  act  in  question  was  passed  a  moral  and  equi- 
table obligation,  though  not  a  legal  one,  the  payment 
of  the  money  of  the  state  in  discharge  of  such  obliga- 
tion, pursuant  to  the  provisions  of  an  act  of  the  legis- 
lature in  other  respects  valid,  would  not  be  a  gift  or 
gratuity  within  the  meaning  of  section  9  of  article 
Vni  of  the  Constitution.  Cayuga  County  v.  State 
of  New  York,  153  N.  T.  279;  Mwyro  v.  State  of  New 
York,  223  id.  208. 

I  conclude  also  that  the  act  is  not  in  contravention 
of  section  28  of  article  HE  of  the  Constitution.  Of 
course,  if  contractors  are  permitted  to  recover  by  vir- 
tue of  its  provisions  they  will  have  received  extra  com- 


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248    Dale  Engineering  Co.  v.  State  of  New  Yobk. 

Court  of  Claims,  January,  1921.  [Vol.114. 

pensation, because  they  will  have  received  compensation 
over  and  above  that  fixed  by  their  contracts  when  the 
labor  and  materials  were  furnished  {Matter  of  Mahon 
V.  Board  of  Education,  171  N.  T.  263,  266),  but  such 
extra  compensation  has  not  been  granted  by  the  act,  the 
meaning  and  effect  of  which  is  merely  to  refer  such 
claims  to  this  court  to  be  heard  and  examined  upon 
legal  evidence  to  the  end  that  this  court  may  determine 
whether  or  not  in  conscience,  equity  and  justice  the 
state  should  pay  any  amount,  and  if  so  what  amount,  on 
account  of  the  facts  alleged  in  the  claim  and  proven  on 
the  trial,  the  legislature  having  by  the  act  waived  legal 
defenses  to  the  extent  specified  in  the  act. 

The  section  of  the  Constitution  under  consideration 
does  not  provide  that  no  contractor  shall  receive  any 
extra  compensation,  or  that  the  state  shall  not  grant, 
allow  or  pay  any  extra  compensation,  but  merely  that 
the  legislature  shall  not  do  so.  The  act  contains  no 
language  expressly  granting  any  compensation,  extra 
or  other,  to  any  contractor,  but  is  a  general  act  declar- 
ing a  policy  of  justice  and  equity  to  those  who  under 
extraordinary  war  conditions  have  expended  moneys 
for  the  benefit  of  the  state  in  amounts  far  greater  than 
the  state  was  legally  bound  to  repay,  and  provides  for 
payment  only  if  and  when  this  court  shall  by  its  judg- 
ments establish  valid  claims. 

It  is  urged  by  the  state  that  the  statute  by  its  terms 
leaves  nothing  to  the  court  to  be  judicially  determined 
but  conmiands  the  court  to  render  the  exact  judgment 
directed  by  its  terms.  When,  however,  the  act  is  read 
and  construed  in  the  light  of  the  law  as  declared  in 
Mv/rvro  v.  State  of  New  York,  223  N.  Y.  208-214,  and 
the  word  '*  shall  ^'  in  the  twelfth  line  of  section  6  read 
as  *'  may  '*  in  conformity  to  the  rule  there  enunciated 
and  applied,  it  appears  that  the  court  is  not  com- 
manded, but  authorized  and  permitted  to  render  judg- 


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Dale  Engineering  Co.  v.  State  of  New  York.     249 

Misc.]  Court  of  Claims,  January,  1921. 

~^ 

ment  in  sruch  cases,  and  to  fix  the  amount  of  the  recov- 
ery, restricted,  however,  by  the  limitations  expressed 
in  the  act. 

Attention  has  been  called  to  the  fact  that  the  act 
Tinder  consideration  does  not,  as  did  the  act  construed 
in  the  Munro  Case,  supra,  in  terms  confer  upon  the 
court  jurisdiction  to  determine,  but  merely  to  hear, 
such  claims.  This  circumstance  I  regard  unimportant. 
Jurisdiction  to  hear  necessarily  implies  authority  to 
determine.  Hearing  without  determination  would  be 
idle  and  futile  and  the  legislature  cannot  be  held  to 
have  intended  an  idle  ceremony.  American  Bamk  Note 
Go.  V.  State  of  New  York,  64  App,  Div.  223,  227. 

Attention  has  also  been  called  to  the  fact  that  the 
act  construed  in  the  Munro  case  by  its  terms  author- 
ized the  court  to  render  judgment  for  such  sum  as 
shall  be  **  just  and  equitable,'*  whereas  in  the  act 
under  consideration  the  words  '*  just  and  equitable  ** 
or  equivalent  words  are  not  used  and  it  is  argued  that 
hence  the  court  has  not  been  authorized  to  determine 
as  to  the  justice  and  equity  of  such  claims,  but  that 
the  legislature  itself  has  determined  the  justice  and 
equity  of  the  claims  in  advance,  and  in  favor  of  claim- 
ants, leaving  to  the  court  only  the  duty  of  computing 
the  amount  of  the  judgment  to  be  rendered.  I  do  not 
so  read  the  statute. 

Jurisdiction  to  hear  and  determine  includes  power 
to  determine  and  decide  every  question  necessarily 
involved  in  the  case  being  heard.  The  words  **  The 
Court  of  Claims  shall  (may)  determine  the  increased 
cost  •  •  •  and  render  judgment  against  the  state 
for  the  amount  so  determined  as  chargeable  to  the 
state  '*  confer  power  and  authority  to  allow  or  reject 
claims  in  whole  or  in  part  and  in  considering  whether 
they  are  to  be  allowed,  to  take  into  consideration  prin- 
ciples of  equity  and  common  justice,   disregarding 


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250    Dale  Engineering  Co.  v.  State  of  New  York. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

purely  legal  defenses  to  the  extent  permitted  by  the 
act.  Cole  V.  State  of  New  York,  102  N.  Y.  48,  52; 
Munro  v.  State  of  New  York,  223  id.  208,  213. 

There  is  abundant  authority  to  support  the  power 
of  the  legislature  by  appropriate  enactments  to  recog- 
nize the  moral  and  equitable  obligations  of  the  state 
to  the  extent  of  referring  them  to  this  court  for  exam- 
ination and  determination  and  allowance  if  the  facts 
shall  establish  a  moral  and  equitable  ground  for  recov- 
ery, though  the  legislature  is  forbidden  by  the  Con- 
stitution to  itself  audit  and  allow  such  claims.  Board 
of  Supervisors  of  County  of  Cayuga  v.  State  of  New 
York,  153  N.  Y.  279;  Cole  v.  State  of  New  York,  102 
id.  46;  O'Hara  v.  State  of  New  York,  112  id.  146; 
Wheeler  v.  State  of  New  York,  190  id.  406 ;  Lehigh  Val- 
ley R.  R.  Co.  V.  Canal  Board,  204  id.  471;  Munro  v. 
State  of  New  York,  223  id.  208. 

I  have  not  overlooked  Matter  of  Mdhon  v.  Board 
of  Education,  171  N.  Y.  263.  The  statute  there  con- 
sidered (Laws  of  1900,  chap.  725)  made  no  provision 
for  the  hearing  and  determination  of  the  claims  of  the 
retired  teachers  to  a  pension,  but  the  right  to  the  pen- 
sion and  the  amount  thereof  were  determined  by  the 
direct  action  of  the  legislature ;  hence  the  act  was  held 
to  be  in  contravention  of  section  28  of  article  III  of  the 
Constituton. 

However,  I  concur  in  the  opinion  of  Presiding  Judge 
Ackerson  that  this  court  is  without  jurisdiction  to 
make  an  award  in  claimant's  favor  upon  this  claim 
for  the  reason  that  chapter  459  of  the  Laws  of  1919 
does  not  apply  to  claimant's  contract  nor  to  this  claim, 
and,  therefore,  that  the  claim  should  be  dismissed. 

MoRSOHAUBER,  J.  (coucurring).  The  claim  herein 
is  made  by  a  contractor  who  has  had  a  contract  for  the 
construction  of  a  public  highway  with  the  state  to 
build  a  state  road.    The  claim  is  filed  under  chapter 


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Dalb  Enginebbing  Co.  v.  State  of  New  Yobk.    251 

Misc.]  Court  of  GlaimSy  January,  1921. 

459,  Laws  of  1919,  oommonly  known  as  the  Knight 
Act.  Section  6  confers  jurisdiction  upon  the  court, 
and  reads  as  follows: 

**  §  6.  Jurisdiction  is  hereby  conferred  upon  the 
court  of  claims  to  hear  all  claims  for  alleged  increase 
in  the  cost  of  labor,  materials  or  transportation  of 
materials  incurred  after  April  sixth,  nineteen  hundred 
and  seventeen,  in  the  doing  and  performance  of  war 
contracts  which  have  been  completed,  accepted  and 
for  which  final  payment  has  been  made,  including  con- 
tracts advertised  for  letting  between  April  sixth,  nine- 
teen hundred  and  seventeen,  and  April  seventeenth, 
nineteen  hundred  and  seventeen,  on  estimates  prepared 
by  the  department  of  highways  prior  to  April  sixth, 
nineteen  hundred  and  seventeen,  and  also  of  any  war 
contract  terminated  under  the  provisions  of  this  act. 
The  court  of  claims  shall  determine  the  increased  cost, 
whether  the  whole  or  a  part,  which  is  properly  charge- 
able against  the  state  and  the  portion  of  such 
increased  cost,  if  any,  which  may  be  paid  by  a  sub- 
division or  subdivisions  of  the  state  as  hereinafter 
provided  on  the  basis  on  which  the  state  and  the  sub- 
divisions of  the  state  were  obligated  to  pay  for  the 
work  done  under  the  contract  and  render  judgment 
against  the  state  for  the  amount  so  determined  as 
chargeable  to  the  state,  which  judgment  shall  be  paid 
as  other  judgments  against  the  state  are  paid.  No 
judgment  shall  be  rendered,  however,  for  an  amount 
greater  than  thirty-five  per  centiun  of  the  contract 
price  of  labor,  materials  and  the  transportation  of 
materials  furnished  or  supplied  during  the  year  nine- 
teen hundred  and  seventeen,  nor  greater  than  fifty 
per  centum  of  the  contract  price  of  labor,  materials 
and  transportation  of  materials  furnished  or  sup- 
plied during  the  year  nineteen  hundred  and  eighteen. 
No  claim  for  relief  under  this  section  shall  be  main- 


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252    Dai^  Engineering  Oo.  v.  State  op  New  York. 

Court  of  Claims,  January,  1921.  [Vol.114. 

tained  against  the  state  unless  the  claimant  shall  file 
his  claim  within  six  months  after  his  right  of  action 
shall  accme  under  the  provisions  of  this  act.  Any  sub- 
division of  the  state  is  authorized  and  empowered  to 
raise  by  taxation  or  by  an  issue  of  its  obligations  such 
an  amount  as  may  have  been  found  by  the  court 
of  claims  to  be  the  proportion  which  said  subdivision 
may  pay  for  the  increased  cost  as  so  determined,  and 
to  pay  said  amount  to  the  contractor  entitled  to 
receive  the  same.'' 

Among  other  defenses  made  by  the  state,  it  chal- 
lenges the  constitutionality  of  the  Knight  Act  and 
asserts  that  the  same  is  unconstitutional  under  the 
provisions  of  section  19,  article  III,  and  section  28  of 
article  III  of  the  New  York  State  Constitution.  Sec- 
tion 19,  article  III,  reads  as  follows:  **  The  legislature 
shall  neither  audit  nor  allow  any  private  claim  or 
account  against  the  State,  but  may  appropriate  money 
to  pay  such  claims  as  shall  have  been  audited  and 
allowed  according  to  law.'' 

Section  28,  article  III,  reads  as  follows :  *'  The  legis- 
lature shall  not,  nor  shall  the  common  council  of  any 
dty,  nor  any  board  of  supervisors,  grant  any  extra 
compensation  to  any  public  officer,  servant,  agent  or 
contractor." 

Both  section  19  and  section  28  of  article  III  were 
reconmiended  by  the  Constitutional  Convention  in 
1867  and  were  adopted  and  became  a  part  of  the  pro- 
visions of  the  Constitution  in  1874.  In  addition  to  these 
amendments  of  the  Constitution,  sections  6  and  9  of 
article  VH  and  sections  9  and  10  of  article  VIII  were 
all  under  discussion  by  the  Constitutional  Convention 
of  1867  and  were  all  adopted  in  1874,  and  in  that  year 
became  part  of  the  Constitution  of  the  state  of  New 
York.  All  of  these  sections  were  amendments  to  the 
Constitution  and  were  adopted  in  1874  to  remedy  the 


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Dai^  Enginbeking  Co.  v.  State  of  New  York.    253 

Misc.]  Court  of  Claims,  Januaryi  1921. 

many  evils  of  special  legislation,  which  had  grown  so 
extensive  as  to  become  a  public  scandal.  Prior  to  the 
adoption  of  these  amendments  the  power  of  the  legis- 
lature was  not  restricted,  so  that  it  could  pass  private 
bills  (or  change  the  terms  of  a  contract)  or  increase 
the  pay  of  contractors,  increase  salaries  and  do  many 
things  that  these  amendments  were  intended  to  pro- 
hibit, and  before  these  amendments  special  legisla- 
tion became  subject  to  great  abuses,  which  the  various 
amendments  above  named  to  the  Constitution  were 
intended  to  remedy.  After  the  adoption  of  these 
amendments  to  the  Constitution  and  after  they  became 
a  part  of  the  Constitution  of  the  state  there  arose  many 
instances  in  which  the  state,  recognizing  its  moral 
obligation,  where  in  its  judgment  justice  and  right 
demanded  it,  by  enactments  through  the  legislature 
conferred  jurisdiction  on  the  Board  of  Claims,  and 
afterwards  the  Court  of  Claims,  directing  them  to  dis- 
regard legal  defenses  and  award  judgment  against  the 
state,  if  the  court  found  that  the  claim  was  founded  on 
equity  and  justice,  although  the  claims  were  not  such 
as  could  have  been  enforced  in  a  court  of  law.  if  the 
state  had  not  been  immune  from  suit.  Under  such 
circumstances  many  enabling  acts  have  been  passed 
by  the  legislature;  and  the  several  amendments  of 
1874,  above  named,  have  been  the  subject  of  judicial 
construction,  arising  out  of  claims  presented  under 
such  special  legislation.  Almost  without  exception 
the  courts  have  held  in  such  cases  such  enabling  acts 
to  be  constitutional  and  not  in  violation  of  the  pro- 
visions of  the  various  amendments,  if  the  claim  and 
demand  against  the  state  was  one  founded  on  justice 
and  equity.  Munro  v.  State  of  New  York,  223  N.  Y. 
208;  Lehigh  Valley  R.  K  Co.  v.  Canal  Board,  204  id. 
471;  Trustees  Exempt  Firemen's  Benev.  Fund  v. 
Booms,  93  id.  313;  Wheeler  v.  State  of  New  York,  190 


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254   Dau  Engikbebikg  Oo.  v.  State  of  Nbw  York. 

Court  of  Claims,  January,  1921.  [Y oL  114. 

id,  406;  Matter  of  Boston  S  Albany  R.  R.  Co.,  64  App. 
Div.  257;  170  N.  Y.  619;  Oswego  <B  Syracuse  R.  R.  Co. 
V.  State  of  New  Tork,  186  id.  384;  affd.,  226  N.  Y.  351; 
Cole  V.  State  of  New  York,  102  id.  48. 

But  in  no  instance  where  the  enabling  act  was 
passed  in  aid  of  any  one  who  rendered  services  to  the 
state  or  who  was  entitled  to  recover  from  the  state  did 
the  legislature  assnme  to  determine  the  question  of 
the  equity  or  justice  of  such  a  claim,  but  submitted  it 
to  a  tribunal  to  hear,  audit  and  determine,  and  usually 
conferred  jurisdiction  upon  the  Court  of  Cl^ms  and 
invested  such  tribunal  with  judicial  x)Owers  to  deter- 
mine the  equities  and  justice  of  a  claim  so  presented, 
and  permitted  it  to  decide  such  questions.  The  state, 
recognizing  its  moral  obligation,  could  at  all  times 
do  justice  even  though  it  had  a  legal  defense  to  claims 
presented,  and  the  courts  have  uniformly  held  that 
under  such  circumstances  the  amendments  to  the  Con- 
stitution of  1874  did  not  prevent  the  state  through 
its  legislature  from  enacting  laws  whereby  tiiese 
daims  could  be  submitted  to  some  tribunal  for  deter- 
mination. The  legislature  itself  could  not  make  such 
determination,  and,  therefore,  jurisdiction  to  make 
such  determination  and  hear  the  claim  and  audit  and 
determine  the  same  was  usually  referred  to  its  tri«^ 
bunal  known  as  the  Court  of  Claims,  created  for  that 
purpose.  The  legislature  could  not  in  any  orderly 
way,  such  as  the  taking  of  testimony  and  the  observa- 
tion of  legal  rules  governing  evidence,  determine 
these  questions.  By  referring  it  to  the  Court  of 
Claims  there  was  an  orderly  way  of  determining  it 
upon  evidence,  and  the  right  to  appeal  and  review  was 
provided  by  the  Code.  And  where  this  was  done,  the 
courts  have  uniformly  held  that  such  enabling  act  con- 
ferring such  jurisdiction  was  not  in  violation  of  the 
oomstitational  provisions  above  named. 


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DAiiB  ENGiNBBRiKa  Co.  V.  Statb  OF  Nbw  Yobk.    255 

Misc.]  Court  of  Claims,  January,  1921. 

At  the  time  of  the  declaration  of  war  of  the  United 
States  with  the  Imperial  German  government,  the  state 
of  New  York  was  nnder  contract  with  many  contractors 
to  bnild  or  repair  state  highways.  This  war  created  a 
great  demand  from  the  ranks  of  labor  for  men  and 
great  increase  in  the  costs  of  labor  and  material  and 
in  the  costs  of  transportation;  industries  were  con- 
verted into  ammnnition  factories  and  all  labor  was 
either  used  in  the  manufacture  of  ammunition  and  other 
articles  used  in  the  war  or  the  laboring  man  was  con- 
verted into  a  soldier;  railroads  were  busily  engaged  in 
transporting  war  necessities,  with  the  result  that  the 
costs  of  all  labor  and  material  were  greatly  increased. 
The  war  and  these  conditions  were  not  contemplated  at 
the  time  the  contractors  entered  into  the  contract  for 
the  improvement  or  construction  of  highways,  and  it 
certainly  never  was  intended  by  either  contracting 
party  to  be  one  of  the  hazards  usually  encountered  in 
the  carrying  out  of  contracts ;  and  the  contractor  when 
m€dking  his  bid  could  not  be  expected  to  anticipate  such 
a  condition ;  and  the  costs  of  material,  labor  and  trans- 
portation after  the  war  reached  such  a  high  mark 
that  to  compel  the  contractor  to  complete  his  contract 
would  mean  in  many  cases  absolute  bankruptcy  for 
him. 

While  it  is  a  well-settled  rule  of  law  that  a  person 
may  be  relieved  from  an  obligation  of  his  contract 
when  it  becomes  impossible  of  performance  or  when 
such  performance  has  become  impossible  on  his  part 
by  some  superior  force  without  his  fault,  it  was  never- 
theless held  in  Colwnhus  Railway,  Power  (&  L.  Co.  v. 
Columbus,  249  U.  S.  399,  that  the  high  cost  of  labor 
and  the  increased  costs  of  material  and  transporta- 
tion brought  about  by  the  World  War,  did  not  make 
a  contract  impossible  of  performance  and  was  not 
such  superior  force  aa  to  prevent  its  performance. 


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256    Dams  Engineeking  Co.  v.  State  of  New  York. 

Court  of  Claims,  January,  1921.  [Vol.114. 

Justice  Day  in  writing  the  opinion  for  the  court, 
Mnong  other  things,  says:  **  It  certainly  was  not 
intended  to  question  the  principle,  frequently  declared 
in  decisions  of  this  court,  that  if  a  party  charge  him- 
self with  an  obligation  possible  to  be  performed,  he 
must  abide  by  it  unless  performance  is  rendered 
impossible  by  the  act  of  God,  the  law,  or  the  other 
party.  Unforeseen  difficulties  will  not  excuse  per- 
formance. Where  the  parties  have  made  no  pro- 
vision for  a  dispensation,  the  terms  of  the  contract 
must  prevail.  •  •  •  The  latest  utterance  of  this 
court  upon  the  subject  is  found  in  Day  v.  United 
States,  245  U.  S.  159,  in  which  it  was  said :  *  One  who 
makes  a  contract  never  can  be  absolutely  certain  that 
he  will  be  able  to  perform  it  when  the  time  comes,  and 
the  very  essence  of  it  is  that  he  takes  the  risk  within 
the  limits  of  his  undertaking.     *     *     *  *  '* 

In  that  case  one  of  the  contracting  parties  sought 
to  enforce  the  contract  against  the  other  party,  and 
the  effect  of  this  decision  was  that  the  World  War 
and  the  condition  created  by  it  did  not  excuse  either 
contracting  party  from  fulfilling  the  obligations  of 
his  contract. 

In  the  case  on  trial  before  this  court,  while  the  ques- 
tion arose  between  the  contracting  parties-,  one  of  the 
contracting  parties,  namely,  the  state  of  New  York, 
by  legislative  enactment  did  relieve  the  other  party 
from  carrying  out  his  contract  and  relieved  him  from 
his  obligations  thereunder  which  were  brought  about 
by  the  World  War,  as  chapter  585  of  the  Laws  of  1918, 
commonly  known  as  the  Walters  Act,  permitted  the 
state  upon  consent  of  the  contractor  to  terminate  such 
contracts,  and  if  the  state  had  not  by  legislative  enact- 
ment waived  the  performance  of  the  contract,  under 
the  decision  in  Columbus  Railway,  Power  <&  L.  Co.  v. 
CoVumhus,  supra,  the  conditions  created  by  the  World 


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Dalb  Engineering  Oo.  v.  State  of  New  York.  257 

Misc.]  Court  of  Claimsy  January,  1921. 

War  would  not   have  permitted  the   contractor  to 
abandon  his  contract. 

We  think  the  legislature  had  the  power  to  allow 
any  contractor  who  had  a  contract  with  the  state,  with 
the  consent  of  the  contractor  to  cancel  the  sanie.  As  was 
said  in  People  ex  rel.  Williams  v.  Dayton,  55  N.  Y, 
374:  **No  constitutional  provision  can  prevent  a 
failure,  on  the  part  of  the  contractor,  to  perform  his 
contract  nor  his  abandonment  of  it;  and  it  is  conceded 
that  the  legislature  may  cancel  or  authorize  contracts 
to  be  canceled."  And  we  think  that  the  legislature 
had  such  power  if  assented  to  by  the  contractor,  and 
that  the  legislature  could  go  further  and  confer  upon 
the  Court  of  Claims  jurisdiction  to  hear,  audit  and 
determine  the  equities  of  the  claim  and,  if  the  state 
should  as  a  moral  obligation  by  reason  of  the  World 
War  pay  the  contractor  the  difference  between  the 
stipulated  price  under  the  contract  and  the  increased 
cost,  allow  the  Court  of  Claims  to  do  so.  This  the 
legislature  attempted  to  do  by  the  enactment  of  chap- 
ter 459  of  the  Laws  of  1919,  commonly  known  as  the 
Knight  Act.  Had  the  legislature  done  so  we  do  not; 
think  that  the  provisions  of  the  Constitution  named ! 
would  have  been  violated.  But  by  the  Knight  Act  the 
legislature  did  not  confer  jurisdiction  upon  the  Court 
of  Claims  to  hear,  audit  and  determine  the  claim.  It 
simply  directed  that  the  Court  of  Claims  shall  deter- 
mine the  difference  in  the  cost  and  then  commanded 
the  Court  of  Claims  to  award  judgment  for  such  sum 
in  favor  of  the  contractor.  While  it  states  in  the  act 
that  the  Court  of  Claims  shall  hear  the  claim,  it 
nowhere  confers  any  jurisdiction  to  audit  and  deter- 
mine the  same,  but  simply  directs  that  the  Court  of 
Claims  shall  make  a  computation  of  the  difference  in 
the  cost  and  determine  the  amount  thereof  and  then 
award  judgment  against  the  state  and  in  favor  of  the 
17 


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258    Dai^  Engineeeing  Co.  v.  State  of  New  York. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

contractor  for  the  amount  so  ascertained.  The  legis- 
lature by  the  Knight  Act  assumed  to  decide  the 
equities  and  the  moral  obligation  of  the  state,  and  left 
nothing  for  the  Court  of  Claims  to  do  except  to  com- 
pute the  amount.  This,  we  think,  is  precisely  what 
the  amendments  to  the  Constitution  intended  to  pre- 
vent the  legislature  from  doing.  While  the  state  was 
ready  to  do  equity  and  observe  its  moral  obligation, 
the  decisions  hold  that  the  question  as  to  whether  a 
claim  presented  against  the  state  should  in  good  con- 
science be  paid  and  whether  there  was  any  moral  obli- 
gation upon  the  part  of  the  state  in  equity  and  justice 
to  pay  the  same  although  the  state  may  have  had  some 
legal  defense,  should  always  be  submitted  to  a  consti- 
tuted tribunal  with  judicial  functions  so  that  the  matter 
could  be  judicially  determined  and  properly  reviewed 
upon  appeal.  This  principle  of  law  is  clearly  stated 
by  Judge  Rapallo  in  Cole  v.  State  of  New  York,  102 
N.  T.  51.  In  this  case  the  claimant,  while  acting 
as  a  captain  and  harbor  master  of  the  port  of  New 
York,  rendered  certain  services  to  the  state  of  New 
York,  which  he  was  authorized  to  do  by  chapter 
436  of  the  Laws  of  1860  and  it  was  afterwards  deter- 
mined that  he  could  not  be  legally  paid  for  such  serv- 
ices. He  having  rendered  services  to  the  state,  the 
legislature  by  chapter  238,  Laws  of  1885,  conferred 
jurisdiction  upon  the  Board  of  Claims  to  hear,  audit 
and  determine  such  claim.  The  act  was  challenged  as 
being  unconstitutional  and  in  violation  of  section  19, 
article  III,  of  the  New  York  State  Constitution.  Judge 
Rapallo,  writing  the  opinion  for  the  court,  says : 

**  It  is  apparent  that  the  act  does  not  come  within 
the  prohibition  against  the  auditing  by  the  legislature 
of  any  private  claim.  The  act  does  not  purport  to 
audit  the  claims.  This  the  legislature  could  not  do, 
however  just  the  claim,  or  however  legal  it  might  be 


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Dale  Engineering  Oo.  v.  State  of  New  York.    259 

Ifiw.]  Court  of  Claims,  January,  1921. 

if  preferred  against  an  individual.  The  Constitution 
prohibits  the  legislature  from  exercising  the  power  of 
itself  auditing  claims,  which  is  in  its  nature  judicial, 
but  provides  for  the  payment  of  claims  which  shall 
have  been  audited  or  allowed  according  to  law;  thus 
recognizing  the  power  of  the  legislature  to  provide  by- 
law for  the  auditing  and  allowing  by  some  appropriate 
tribunal  of  claims  against  the  State. 

"It  is  contended,  however,  that  the  act  does  come 
within  the  prohibition  against  allowing  claims  against 
the  State. 

**  It  must  be  observed  that  the  act  of  1885  does  not 
even  assume  to  allow  these  claims.  It  simply  submits 
them  to  the  arbitrament  of  the  board  of  claims,  a 
judicial  body  established  for  the  purpose  of  passing 
upon  claims  against  the  Stale.  It  gives  jurisdiction  to 
that  tribunal  to  hear  and  determi/ne  those  claims,  but 
does  not  dictate  how  it  shall  decide  upon  them.  The 
only  limitation  upon  the  power  of  the  board  to  decide 
is,  that  it  shall  confine  itself  to  a  reasonable  com- 
pensation for  services  performed  and  expenses  in- 
curred during  the  year  specified.  Under  the  authority 
conferred  by  the  act,  that  tribunal,  if  it  deemed  the 
claims  unjust,  might  have  rejected  them  in  toto.  The 
power  to  hear  and  determi/ne  includes  power  to  reject 
as  well  as  to  allow.  Construing  the  constitutional 
restriction  literally,  it  was  not  violated  by  giving  to 
the  board  jurisdiction  to  hear  and  determine.  The 
enactment  was  consequently  purely  legislative  and  in 
no  sense  an  exercise  of  judicial  power. 

*'  It  is  contended,  however,  that  the  enactment  was 
violative  of  the  spirit  and  intent  of  the  constitutional 
prohibition,  if  not  of  its  letter.  That  it  was  intended 
not  merely  to  prevent  the  legislature  from  itself  acting 
judicially  in  passing  upon  private  claims,  but  from 
passing  any  law  under  which  a  private  cl^im  could 


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260    Dai^  Engineering  Co.  v.  State  of  New  York, 

Court  of  Claims,  January,  1921.  [Vol.  114. 

be  recognized  by  or  established  against  the  State,  how- 
ever just  and  equitable  it  might  be,  unless  it  was 
founded  on  a  legal  liability  which  could  be  enforced  by 
the  courts  of  justice  against  an  individual  or  a  cor- 
poration. We  find  no  such  restriction  upon  the  legis- 
lative power  in  the  State  Constitution.  The  act  estab- 
lishing the  board  of  daims  (Laws  of  1883,  chap.  205, 
amended  by  Laws  of  1884,  chap.  60)  confers  upon  the 
board  jurisdiction  to  hear,  audit  and  determine  all 
private  claims  which  shall  have  accrued  within  two 
years,  except  such  as  are  barred  by  existing  statutes. 
But  that  restriction  was  imposed  by  the  legislature 
and  is  subject  to  modification  by  it. 

^^  The  statute  of  limitations  and  other  legal  defenses 
are,  under  the  general  law,  available  to  the  State 
as  against  a  private  claim  preferred  to  the  board  of 
claims,  and  as  a  general  rule  it  has  been  considered 
that  the  authority  of  the  board  is  confined  to  the  allow- 
ance of  legal  claims.  But  can  it  be  maintaned  that  it 
would  be  beyond  the  power  of  the  legislature,  in  special 
cases,  where  in  its  judgment  justice  and  right 
demanded  it,  to  give  power  to  the  board  of  claims  to 
disregard  defenses  strictly  legal  t  We  are  unable  to 
find  in  the  Constitution  anything  which  deprives  the 
legislature  of  the  power  of  giving  to  the  board  of 
claims,  or  any  other  proper  tribunal,  jurisdiction  to 
hear  and  determine  claims  against  the  State  which  are 
founded  in  right  and  justice,  solely  for  the  reason  that 
they  could  not  be  enforced  against  an  individual  in  the 
courts.    •     •     • 

**  Where  the  creation  of  a  particular  class  of  liabili- 
ties is  prohibited  by  the  Constitution,  it  would  of 
course  be  an  infraction  of  that  instrument  to  pass  any 
law  authorizing  their  enforcement,  but  in  the  absence 
of  any  such  prohibition  there  is  no  good  reason  why  the 
State  should  be  powerless  to  do  justice,  or  to  recognize 


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Dalb  Engikberikg  Co.  v.  State  of  New  York.    261 

Misc.]  Court  of  Claims,  January,  1921. 

obligations  which  are  meritorious  and  honorary  and 
to  provide  tribunals  to  pass  upon  them.  The  legis- 
lative power  is  suflficient,  even  as  between  individuals, 
to  afford  new  remedies  and  to  create  liabilities  not 
before  existing,  where  they  are  based  upon  general 
principles  of  justice, 

**As  a  general  rule  money  expended  or  services 
rendered  by  one  individual  for  the  benefit  of  another, 
but  without  his  request  or  authority,  do  not  create  a 
legal  liability  on  the  part  of  the  person  benefited  to 
make  compensation.  But  a  law  which  should  provide 
that  in  every  such  case,  if  the  party  benefited  ratifies 
the  acts  of  the  other,  and  accepts  the  benefits,  he 
should  be  liable,  would  be  free  from  objection,  so  far, 
at  all  events,  as  it  should  apply  to  future  transactions. 
Where  the  legislature  is  dealing  with  the  imperfect 
obligation  arising  from  such  a  state  of  facts,  it  seems 
to  us  that  it  does  not  transcend  its  power  by  passing 
a  law  affording  a  remedy  even  in  respect  to  past  trans- 
actions, where  the  State  adopts  the  acts  and  is  the 
party  to  make  the  compensation,  and  no  rights  of 
individuals,  which  are  protected  by  the  Constitution, 
are  invaded.'* 

In  the  case  at  bar  the  legislature  not  only  allowed 
the  claim  but  directed  the  Court  of  Claims  to  compute 
the  amount  found  due  under  such  conditions  and  award 
judgment,  the  language  of  the  act  being  that  the  Court 
of  Claims  shall  determine  the  amount  of  the  difference 
between  the  contract  and  cost  price  and  award  judg- 
ment. The  legislature  cannot  do  indirectly  what  it 
cannot  do  directly.  In  the  case  of  Munro  v.  State  of 
New  York,  223  N.  Y.  208,  where  the  claimant  had  been 
injured  while  in  the  employ  of  the  state  by  reason 
of  the  acts  of  an  insane  person  at  a  state  hospital 
(although  the  state  was  not  legally  liable)  yet  it  was 
held  that  the  enabling  act  was   constitutional   and 


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262    Dai^  ENGiNEBRiNa  Co.  V.  State  op  New  Yobk. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

not  in  violation  of  the  constitutional  principles  above 
named.  In  that  case,  after  reciting  the  facts,  the 
legislature  declared  that  such  facts  shall  constitute 
a  legal  and  valid  claim  against  the  state  and  the 
court  shaU  award  and  render  judgment  for  the  claim- 
ant; and  it  was  there  held,  Judge  Crane  writing  the 
opinion,  that  the  word  **  shall "  was  not  intended 
to  nullify  the  power  of  the  court  to  hear,  audit  and 
determine  or  make  it  compulsory  to  award  damage 
(the  clear  meaning  of  the  intent  of  the  legislature 
was  to  confer  authority  and  power  upon  the  Court 
of  Claims  and  not  to  direct  or  control  its  action). 
This  was  the  reason,  and  the  court  says:  **  It  might 
appear  at  first  reading  as  if  the  legislature  had  allowed 
Munro  's  claim  and  merely  left  it  to  the  Court  of  Claims 
to  fix  the  amount  of  damages,  but  when  we  read  more 
closely  and  apply  the  rules  of  statutory  construction 
this  impression  vanishes.  *  The  spirit,  not  the  letter, 
must  control,*  said  Miller,  J.,  in  Maiter  of  Jensen 
V.  Southern  Pacific  Co.  (215  N.  Y.  514, 522)  where '  may 
be  '  was  held  to  mean  *  shall  be.'  By  the  first  clause  of 
the  act  the  Court  of  Claims  *  is  authorized  to  hear, 
audit  and  determine  the  claim  of  John  I.  Munro.*  It 
is  then  provided,  *  if  the  court  finds  such  injuries  were 
so  sustained,  damages  therefor  shall  constitute  a  legal 
and  valid  claim  against  the  state,  and  the  court  shall 
award  to  and  render  judgment  for  the  claimant  for 
such  sum  as  shall  be  just  and  equitable.*  The  use  of 
the  word  *  shall  *  in  these  latter  phrases  was  not  in- 
tended to  nullify  the  power  of  the  court  to  hear,  audit 
and  determine  or  make  it  compulsory  to  award  dam- 
ages.** 

The  word  **  shall  **  in  the  enabling  act  in  the  Mu/nro 
case  was  held  by  Judge  Crane  to  mean  **  may  **  for 
the  reason  that  the  word  **  shall  **  in  that  case,  as 
Judge  Crane  said,  did  not  intend  to  nullify  the  power 


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Dai^  Engineering  Oo.  v.  State  of  New  York.     263 

Misc.]  Court  of  Claimsy  January,  1921. 

of  the  court  to  hear  or  to  determine  or  make  it  com- 
pulsory to  award  damages.  **  The  clear  intent  of  the 
legislature  was  to  confer  authority  and  power  upon 
the  Court  of  Claims  and  not  to  direct  or  control  its 
action.'*  In  the  enabling  act  in  the  Munro  case  the 
court  was  not  directed  to  award  judgment,  but  the 
statute  merely  directed  the  court  in  that  case  to  render 
judgment  for  the  claimant  for  such  sum  as  shall  be 
just  and  equitable. 

The  enabling  act  in  that  case  still  left  the  determina- 
tion of  the  questions  to  the  Court  of  Claims.  We  think 
that  the  act  conferring  jurisdiction  upon  this  court, 
chapter  459  of  the  Laws  of  1919,  was  clearly  in  violas 
tion  of  the  provisions  of  section  19,  article  III,  and  sec- 
tion 28  of  article  III.  It  not  only  audited  and  allowed 
a  private  claim  against  the  state,  but  gave  extra  com- 
pensation to  a  contractor  in  violation  of  section  28  of 
article  III.  ''  Extra  ''  is  defined  by  Webster--**  Be- 
yond  or  greater  than  what  is  due,*'  and  this  is  com- 
monly understood  to  be  the  meaning  of  the  word 
**  extra;''  and  when  the  Constitution  provided  there 
should  be  no  extra  compensation  it  certainly  was 
intended  by  the  framers  of  the  Constitution  that 
no  pay  beyond  that  which  is  named  in  the  contract 
should  be  allowed  a  contractor.  Extra  compensa- 
tion was  precisely  what  the  legislature  did  grant 
the  contractor,  by  virtue  of  chapter  459  of  the  Laws 
of  1919;  and  while  under  the  decisions  if  the  state 
was  under  a  moral  obligation  so  to  do  and  it  was 
founded  on  justice  and  equity,  the  legislature  could 
so  do,  still  the  legislature  by  virtue  of  these  amend- 
ments of  the  Constitution  had  no  authority  to  deter- 
mine that  question  itself,  but  was  obligated  to  con- 
fer jurisdiction  upon  some  judicial  tribunal,  where 
the  equities  could  be  determined.  If  this  act  had  con- 
ferred jurisdiction  upon  some  duly  constituted  judi- 


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264    Dale  Engineering  Co.  v.  State  of  New  York. 

Court  of  Claims,  January,  1921.  [Vol.114. 

cial  tribunal  to  hear,  audit  and  determine  the  equi- 
ties and  justice  of  til^e  claim,  we  think  it  would  not 
have  been  in  violation  of  the  provisions  of  the  Con- 
stitution of  this  state,  above  named;  but  as  the  act  did 
not  do  this  but  allowed  extra  compensation  to  a  con- 
tractor and  only  authorized  the  Court  of  Claims  to 
hear  the  claim  and  then  directed  the  court  to  award 
judgment  for  an  amount  to  be  computed,  we  think  was 
in  violation  of  the  provisions  of  the  Constitutioji.  We 
think  that  the  Knight  Act  allowed  extra  compensation 
to  a  contractor  and  merely  left  it  to  the  Court  of 
Claims  to  fix  the  amount,  and  this  amount  was  to  be 
fixed  by  ascertaining  the  difference  between  the  amount 
named  in  the  contract  and  the  increased  cost  brought 
about  by  conditions  created  by  the  World  War,  so 
that  the  act  substantially  directed  the  Court  of  Claims 
to  award  judgment.  It  left  nothing  for  the  Court  of 
Claims  to  do.  It  did  not  call  upon  the  Court  of  Claims 
to  exercise  any  judicial  functions  but  the  legislature 
assumed  to  allow  extra  compensation  and  through  the 
Court  of  Claims  compel  the  state  treasurer  to  pay  this 
contractor  beyond  the  amount  stipulated  in  the  con- 
tract. The  act  might  just  as  well  have  directed  some 
person  to  have  computed  the  amount  and  upon  such 
computation  directed  the  state  treasurer  to  pay  it. 
This  was  precisely  what  the  Constitution  as  amended 
in  1874  intended  to  prevent.  We  must,  therefore,  con- 
clude that  the  act  is  unconstitutional 

Claim  dismissed. 


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Heinemann  v.  State  of  New  York.         265 

Misc.]  Court  of  Claixns,  January,  192L 


BicHAKD  ;J,  Heinemann,  Claimant^  v.  The  State  op 
New  York. 

Claim  No.  16661. 

(State  of  New  York,  Court  of  Claims,  January,  1921.) 

Uquor  Tax  Law,  §  7.  as  amended  in  1918  —  powers  of  state  com- 
missioner of  excise  — wben  claim  for  salary  dismissed^ 
statutes  —  State  Finance  Law,  §  86. 

Under  section  7  of  the  Liquor  Tax  Law,  as  amended  in 
1918,  the  state  commissioner  of  excise  has  power  to  appoint 
special  agents  at  an  annual  salary,  but  as  the  statute  fixes  no 
term  of  office,  the  commissioner  of  excise  may  in  his  discretion 
discharge  or  remove  a  special  ag^t  at  any  time. 

Where  the  state  commissioner  of  excise,  as  in  duty  bound 
by  section  35  of  the  State  Finance  Law,  notifies  a  special 
agent  appointed  by  him  under  section  7  of  the  Liquor  Tax  Law, 
that  the  l^^ature  has  made  no  appropriation  for  special 
agents,  beyond  March  31,  1920,  such  action  of  the  commis- 
sioner is  a  notification  to  the  special  agent,  who  was  serving 
in  continuance  of  a  probationary  appointment  made  in  1915, 
that  his  services  would  be  no  longer  required,  and  his  claim 
for  salary  for  the  month  of  April,  1920,  must  be  dismissed. 

O'Neil  V.  State  of  New  York,  223  N.  Y.  40,  distinguished. 

Claim  for  salary  as  special  agent  of  the  state 
commission  of  excise. 

Edward  J.  Halter,  for  claimant. 

A.  A.  Armitage,  deputy  attorney-general,  for  state 
of  New  York. 

MoRscHAusER,  J.  The  claimant  presents  a  claim 
against  the  state  to  recover  for  salary  as  special 
agent  of  the  state  commission  of  excise  for  a  period 


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266  Hbinemank  v.  Statb  ov  New  Yobk. 

Court  of  Claims,  January,  1921.  [Vol.114. 

beginning  April  1,  1920,  and  ending  April  30,  1920, 
amounting  for  the  month,  for  which  he  makes  a  claim, 
to  the  sxmi  of  $150.  He  alleges  that  he  was  appointed 
a  special  agent  pursuant  to  section  7,  chapter  39  of 
the  Laws  of  1909,  constituting  chapter  34  of  the  Con- 
solidated Laws  known  as  the  Liquor  Tax  Law.  The 
claimant  was  appointed  special  agent  by  the  state 
commissioner  of  excise  to  take  effect  May  11,  1915, 
at  a  salary  of  $1,000  per  annum.  The  rules  of  the 
civil  service  commission  placed  the  special  agents  of 
the  excise  department  in  the  competitive  class;  and 
the  claimant  was  appointed  from  a  civil  service  list. 
The  appointment,  pursuant  to  the  civil  service  rules, 
was  for  a  probationary  term  of  three  months.  There 
was  no  further  appointment  of  the  claimant,  and  he 
continued  to  act  as  special  agent  under  the  original 
appointment  until  March  31, 1920.  At  the  time  of  the 
claimant's  appointment  an  oath  of  office  was  unneces- 
sary but  during  tiie  World  War  the  legislature  by 
chapter  574  of  the  Laws  of  1917  required  all  persons 
employed  by  the  state,  and  its  civil  divisions,  to  take 
and  file  an  oath  of  office.  On  the  9th  day  of  May,  1917, 
the  claimant  took  such  oath  and  filed  the  same  June 
15,  1917,  in  the  office  of  the  secretary  of  state.  The 
claimant  also  filed,  the  bond  required  by  law.  The 
claimant  under  the  Excise  Law  was  entitled  for  the 
first  year  to  an  annual  salary  of  $1,000.  After  he  had 
served  one  year  from  the  date  of  his  appointment  he 
was  entitled  to  an  annual  salary  of  $1,250,  and  after  he 
had  served  two  years  he  was  entitled  to  an  annual 
salary  of  $1,500.  The  law  fixing  the  salary  was 
amended  by  chapter  469  of  the  Laws  of  1918,  which 
provides  that  special  agents  in  the  excise  department 
for  the  first  year  should  receive  $1,000  per  annum,  the 
second  year  $1,250  i>er  annum  and  the  third  year 
$1,500  per  annum,  and  further  provided  that  after 


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Hbinemank  v.  State  of  New  York.  267 

Misc.]  Gonrt  of  Claims,  January,  1921. 

such  special  agents  had  served  three  years  they  should 
receive  an  annual  salary  of  $1,800. 

By  chapter  177  of  the  Laws  of  1919,  the  legislature 
in  its  appropriation  bill  made  appropriations  for 
special  agents  in  the  excise  department  from  July  1, 
1919,  to  March  31,  1920,  and  limited  the  number  of 
special  agents  in  the  excise  department  to  forty-one, 
thirty-nine  of  whom  were  to  receive  a  salary  of  $1,350 
for  nine  months,  and  two  were  to  receive  a  salary  of 
$1,125  for  nine  months.  There  was  no  appropriation 
made  for  such  special  agents  beyond  March  31,  1920. 
Under  the  act  creating  an  excise  department  the  nxmi- 
ber  of  special  agents  to  be  appointed  was  sixty.  On 
March  tenth,  while  the  claimant  was  performing 
the  duties  of  a  special  agent  the  state  commissioner 
of  excise  wrote  to  the  claimant  a  letter  which  reads  as 
follows:  **  I  hereby  notify  you  that  no  appropriation 
was  made  for  your  salary  as  special  agent  or  for  that 
of  any  other  special  agents  in  the  department  after 
March  31,  1920.*' 

On  March  11,  1920,  the  claimant,  in  answer  to  the 
communication  of  the  commissioner  of  excise,  wrote 
a  letter  which  was  received  by  the  commissioner  which 
reads  as  follows:  **  I  am  receipt  of  your  letter 
notifying  me  of  the  failure  of  the  appropriation  for 
salaries  of  special  agents  after  March  31,  1920. 
Beplying  thereto,  I  wish  to  make  the  following  state- 
ment of  my  position :  I  do  not  consider  that  this  ter- 
minates my  service  in  the  department.  I  will  at  all 
times  hold  myself  in  readiness  to  perform  all  the 
duties  imposed  upon  me  by  the  liquor  tax  law,  and  to 
obey  all  instructions  and  orders  issued  by  you  to  me 
in  connection  therewith.  My  address  until  further 
notice  will  be  931  Madison  Avenue,  Albany.'* 

The  commissioner  then  wrote  a  letter  to  the  claim- 
ant which  the  claimant  r^wived  wMoh  reads  as  fol- 


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268  Heinemann  v.  State  op  New  Yobk. 

Court  of  Claims,  January,  1921.  [Vol.114. 

lows:  **  The  State  Department  of  Excise  will  prob- 
ably need  your  services  as  a  witness  from  time  to  time 
in  the  various  actions  and  proceedings  now  pending. 
Will  you  hold  yourself  in  readiness  to  attend  upon  the 
trial  of  such  actions  and  proceedings  upon  request  by 
letter  or  telegram  where  your  attendance  as  a  witness 
may  be  needed,  upon  the  payment  of  your  necessary 
expenses  for  such  attendance  upon  the  same  basis  as 
they  have  been  heretofore  allowed  by  this  oflBce  and 
the  State  Comptroller,  including  carfare  and  hotel 
bills  and  at  a  per  diem  compensation  of  $10;  such 
expenses  and  per  diem  compensation  will  be  paid  in 
the  usual  way  upon  your  presenting  a  verified  expense 
account  for  the  same.  This  letter  is  sent  to  you  for 
the  reason  that  no  appropriation  has  been  made  pro- 
viding for  the  payment  of  your  salary  as  special  agent 
after  March  31, 1920,  and  to  provide  a  way  for  obtain- 
ing your  attendance  as  a  witness  in  such  actions  and 
proceedings  without  subpoenaing  you.*' 

The  claimant  replied  to  this  letter  as  follows: 
**  Replying  to  your  communication  of  March  20th, 
1920,  permit  me  to  state  that  I  will  be  in  readiness  to 
attend  the  trial  of  any  action  or  proceeding  upon 
request  by  letter  or  a  telegram  as  per  diem  compen- 
sation allowed.  In  doing  so,  however,  I  do  not  waive 
any  rights  that  will  prejudice  any  future  action  con- 
templated by  me.'' 

The  claimant  ceased  to  perform  any  services  as 
special  agent  after  March  30,  1920.  On  April  1,  1920, 
the  claimant  entered  the  employ  of  the  jJEtna  Life 
Insurance  Company  at  a  salary  of  $2,000  a  year.  On 
June  21, 1920,  claimant  filed  his  claim  against  the  state 
with  the  Court  of  Claims  for  the  sum  of  $150,  claiming 
that  amount  due  him  for  the  month  of  April,  1920,  by 
virtue  of  his  appointment  as  special  agent  under  the 
Liquor  Tax  Law,  the  claimant's  contention  being  that 


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Heikemann  v.  State  of  New  York.         269 

Misc.]  Court  of  Claims,  January^  1921. 

he  was  appointed  by  the  state  at  a  fixed  salary  and  for 
a  definite  term  and  was,  therefore,  entitled  to  receive 
pay  for  the  month  of  April,  1920.  He  also  asserts  that 
he  was  neither  removed,  discharged  nor  suspended 
from  his  position  as  special  agent. 

Under  section  7  of  the  Liquor  Tax  Law  as  orig- 
inally enacted  by  chapter  39  of  the  Laws  of  1909,  and 
as  amended  by  chapter  569  of  the  Laws  of  1918,  the 
commissioner  of  excise  was  given  power  to  appoint 
special  agents  at  an  annual  salary;  and  under  the 
provisions  of  this  law  special  agents  appointed  could 
be  removed  by  the  commissioner  at  any  time,  and  such 
commissioner  was  given  the  power  to  appoint  their 
successors.  There  is  nothing  in  the  statute  that  fixes 
the  term  of  office  of  a  special  agent.  The  statute  only 
fixes  an  annual  salary.  As  such  agents  under  this 
statute  were  not  employed  or  appointed  for  any  defi- 
nite time  and  no  term  of  office  was  fixed  they  could  be 
discharged  or  removed  at  any  time  by  the  commis- 
sioner of  excise.  The  hiring  or  employing  of  a  person 
at  a  certain  salary  per  annum  has  been  held  not  to 
be  an  employment  for  any  particular  or  definite  term. 
Martin  v.  New  York  Life  Ins.  Co.,  148  N.  Y.  117;  WaU 
son  V.  Gugmo,  204  id.  535. 

There  is  nothing  in  the  law  creating  the  office  of 
special  agent  that  gives  the  commissioner  power  to 
appoint  such  special  agents  for  any  definite  term,  and 
there  is  nothing  in  the  statute  fixing  a  definite  term 
for  such  special  agents,  and  in  the  Excise  Law  as  orig- 
inally enacted,  and  the  amendments  thereto,  the  com- 
missioner of  excise  at  all  times  was  given  the  power 
to  remove  such  special  agents  in  his  discretion. 

Under  chapter  177  of  the  Laws  of  1919,  which  was 
the  appropriations  made  by  the  legislature  for  the 
year  beginning  the  1st  of  July,.  1919,  the  legislature 
limited  the  appropriation  for  special  agents  in  the 


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270         Heinemann  v.  State  op  New  Yobk. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

excise  department  to  March  31,  1920.  Under  this 
appropriation  bill  the  comptroller  was  not  permitted 
to  audit  any  claim  presented  by  the  claimant  for  April, 
1919.  The  State  Finance  Law  provides  as  follows: 
**A  state  officer,  employee,  board,  department  or  com- 
mission shall  not  contract  indebtedness  on  behalf  of 
the  state,  nor  assume  to  bind  the  state,  in  an  amount 
in  excess  of  money  appropriated  or  otherwise  law- 
fully available.''    Laws  of  1909,  chap.  58,  §  35. 

When  the  legislature  made  an  appropriation  for  the 
payment  of  special  agents  under  the  Liquor  Tax  Law 
and  limited  the  appropriation  for  services  for  nine 
months,  the  conunissioner  could  not  incur  any  further 
expense  even  if  he  chose  so  to  do  by  retaining  the 
claimant.  When  the  nine  months  had  expired,  in 
which  the  legislature  had  made  appropriations  for 
special  agents,  the  commissioner  wrote  the  claimant 
that  there  was  no  appropriation  by  the  legislature 
beyond  March  31,  1920,  for  special  agents.  This  was 
in  eflfect  a  notification  that  the  commissioner  did  not 
any  longer  require  the  service  of  the  claimant  and  a 
further  notification  that  he  could  not  accept  any  serv- 
ices for  the  state  by  the  claimant.  The  claimant  must 
have  known  that  under  the  State  Finance  Law  the 
commissioner  was  prohibited  from  incurring  any  fur- 
ther expense  or  continuing  the  employment  of  the 
claimant,  and,  therefore,  the  notification  that  there 
was  no  appropriation  was  in  effect  a  discharge  of 
the  claimant  by  the  commissioner.  We  do  not  think 
that  the  claimant  was  api)ointed  for  any  definite  term, 
and  under  section  7,  chapter  39  of  the  Laws  of  1909  it 
was  within  the  power  of  the  commissioner  to  dis^ 
charge  the  claimant  at  any  time. 

Where  an  officer  whose  term  is  definite  and  fixed 
has  been  prevented  for  a  time  through  no  fault  of  his 
from  performing  the   duties  of  his  office,  and  has 


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Heinemann  v.  State  of  New  Yobk.  271 

■ 
Misc.]  Court  of  Claims,  JaHuary,  1921. 

during  that  time  earned  wages  in  another  and  differ- 
ent employment,  he  cannot  be  compelled  in  an  action 
to  recover  his  unpaid  salary  to  deduct  the  amount  so 
earned  for  the  reason  that  the  salary  belongs  to  him 
as  an  incident  in  his  office  so  long  as  he  holds  it,  and 
when  improperly  withheld  he  may  sue  for  it  and 
recover  it,  and  when  he  does  so  he  is  entitled  to  the 
full  amount,  not  by  force  of  any  contract  but  because 
the  law  attaches  the  salary  to  the  office,  and  there  is 
no  question  of  breach  of  contract  or  resultant  damage 
out  of  which  the  doctrine  evoked  has  grown.  Fitz- 
simmons  v.  City  of  Brooklyn,  102  N.  Y.  538;  Toumg  v. 
City  of  Rochester,  73  App.  Div.  81.  But  this  rule  is 
not  applicable  in  this  case  for  the  reason  that  the 
claimant  was  not  appointed  for  any  definite  term  and 
for  the  further  reason  that  the  act  creating  the  power 
of  the  commissioner  to  appoint  the  claimant  also 
gave  the  commissioner  power  to  discharge  the  claim- 
ant at  any  time. 

After  the  legislature  had  limited  the  appropria- 
tions for  special  agents  to  March  31,  1920,  it  was  the 
duty  of  the  commissioner  of  excise  under  the  Finance 
Law  to  notify  the  claimant  and  the  commissioner 
could  no  longer  accept  or  continue  his  services  or  incur 
any  further  expense  by  retaining  the  claimant. 

The  claimant  urges  upon  us  the  case  of  O^Neil  v. 
State  of  New  York,  223  N.  Y.  40.  This  case  is  easily  dis- 
tinguishable from  the  claimant's  case.  In  the  O'Neil 
case  the  claimant  was  appointed  a  commissioner 
as  a  member  of  the  state  athletic  commission,  pur- 
suant to  chapter  779  of  the  Laws  of  1911.  This  statute 
fixed  the  term  of  office  at  five  years  and  in  that  case 
O'Neil  was  appointed  for  a  term  of  five  years  and  in 
the  statute  giving  the  governor  power  to  appoint  him 
there  was  no  provision  giving  the  governor  power  to 
discharge  such  appointee.   As  the  legislature  failed  to 


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272  Best  v.  State  op  New  Yobk. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

make  an  appropriation  for  O^NeiPs  salary  he  filed  his 
claim  with  the  Conrt  of  Claims  and  it  was  held  that  he 
was  entitled  to  recover  his  salary  because  the  law  fix- 
ing his  term  of  office  and  his  appointment  was  for  a 
definite  term  which  had  not  expired. 

The  commissioner  of  excise  in  this  case,  in  view  of 
the  appropriation  by  the  legislature  for  the  claimant's 
salary  being  limited  to  March  1,  1920,  was  obliged 
to  notify  the  claimant  of  the  fact  that  no  further 
appropriation  was  made  and  he  must  in  view  of  sec- 
tion 35  of  the  Finance  Law  have  understood  that  this 
was  a  notification  that  his  services  would  no  longer 
be  required. 

The  claim  of  the  claimant  must,  therefore,  be  dis- 
missed. 

Ackerson,  p.  J.,  concurs. 

Claim  dismissed. 


Prank   Best,   as    Administrator   of   William   Best, 
Claimant,  v.  State  of  New  York. 

Claim  No.  16537. 

(State  of  New  York,  Court  of  Claims,  January,  1921.) 

Highwasrs  —  immimity  of  state  —  when  state  not  negligent  in  care 
of  highways  —  claims  —  Highway  Law,   §  176. 

The  state  is  always  immune  from  actions  or  liability  unless 
it  expressly  waives  such  immunity  and  assumes  liability. 
(P.  278.) 

By  section  176  of  the  Highway  Law  (Laws  of  1909,  chap.  30, 
as  amended)  the  state  assumes  liability  for  defects  in  its  high- 
ways where  the  state  highway  is  under  the  patrol  system.    (Id.) 

It  is  not  negligence  on  the  part  of  the  state  to  place  gravel 
upon  the  dirt  part  of  a  state  highway,  worn  away  from  time  to 
time,  and  bring  it  up  to  the  level  of  the  macadam  surface  part 
of  the  road.     (P.  279.) 

While  claimant's  intestate,  a  boy  about  seven  years  of  age,  was 
riding  as  a  passenger  on  an  auto  bus  whidi  was  being  driven 


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Best  v.  State  of  New  York.  273 

Misc.]  Court  of  Claims,  January,  1921. 


along  a  state  highway  operated  under  the  patrol  system,  the 
steering  gear  of  the  bus  broke  and  the  driver  could  neither 
guide  nor  control  it.    H^  applied  both  the  front  and  emergency 
brakes  but  the  momentum  carried  the  bus  along  for  some  dis- 
tance, and  while  so  moving  the  left  front  wheel  ran  on  the 
hard  surface  of  the  macadam  road  and  the  right  wheel  ran  on 
the  loose  gravel  part  of  the  road,  thus  deflecting  the  course  of 
the  bus  toward  the  north  edge  of  the  road.    When  the  bus  got 
to  the  edge  of  the  road  it  had  almost  stopped,  but  still  had 
momentum  sufftcient  to  bring  the  right  front  wheel  over  the 
edge  of  the  road  when  the  bus  overturned,  dropped  to  the 
bottom  of  the  embankment  in  the  field  adjoining  and  in  going 
down  it  struck  the  top  of  the  retaining  wall  and  tore  some  of  it 
out.     Claimant's  intestate  was  caught  between  the  top  of  the 
seat  in  the  bus  and  the  bottom  of  the  embankment  and  was  so 
injured  that  within  a  short  time  he  died.    Just  before  the  acci- 
dent the  state  had  placed  on  each  side  of  the  macadam  part 
of  the  road  at  the  place  of  the  accident  several  inches  in  thick- 
ness of  loose  gravel  and  had  brought  the  sides  up  to  a  level 
with  the  macadam  part  of  the  road  and  left  the  dirt  and  gravel 
to  become  hard  and  packed  by  the  use  of  the  public,  but  at  the 
time  of  the  accident  the  gravel  had  not  become  hard  or  packed. 
Held,  that  the  conditions  as  they  existed  at  the  time  of  the 
accident  were  not  ''  defects  "  within  the  meaning  of  section  176 
of  the  Highway  Law  and  the  claim  herein  will  be  dismissed  on 
the  ground  that  the  state  was  not  negligent  in  failing  to  antici- 
pate the  emergency  that  occurred  at  the  time  of  the  accident. 

Claim  for  personal  injuries. 

Daniel  V.  McNamee  and  R.  M.  Herzberg,  for  claim- 
ant. 

Edward  M.  Brown,  deputy  attorney-general,  for 
State  of  New  York. 

MoBSGHAUSER,  J.  The  claimant  presents  a  claim 
against  the  state  alleging  that  his  intestate  was 
injured  on  June  15, 1919,  through  the  negligence  of  the 
state,  from  which  injuries  the  intestate  died,  and  which 
negligence  the  claimant  asserts  was  caused  by  certain 
defects  in  a  state  highway  while  under  the  patrol 


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274  Best  v.  State  of  New  Tobk. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

system  and  which  defect  was  the  cause  of  the  claim- 
ant's intestate  being  injured. 

On  the  trial  both  claimant  and  the  state  consented 
that  the  court  view  the  location  where  the  accident 
occurred,  and  further  consented  that  such  view  should 
be  had  in  the  presence  of  the  attorneys  for  the  claim- 
ant and  in  the  presence  of  the  engineers  of  the  state. 
Pursuant  to  such  consent  and  under  the  provisions  of 
section  268. of  the  Code  of  Civil  Procedure  the  court 
viewed  the  highway  and  the  land  surrounding  and  the 
conditions  existing  at  the  place  of  the  accident. 

The  intestate  was  a  boy  of  about  seven  years  of  age 
living  with  his  parents  at  Philmont,  N.  Y.  On  the  day 
in  question  he  was  a  passenger  on  an  auto  bus  which 
carried  passengers  between  Hudson  and  Philmont, 
Columbia  county,  N.  T.  At  that  time  the  bus  was 
traveling  from  Hudson  to  Philmont  going  in  a  westerly 
direction,  and  while  approaching  Mellenville,  and  a  few 
feet  east  of  the  place  of  the  accident  the  steering  gear 
of  the  bus  broke  and  the  driver  of  the  bus  could  not 
guide  or  control  it. 

At  this  point  the  highway  was  eighteen  feet  in 
width,  substantially  straight  and  level,  running  east 
and  west.  Further  west  from  the  place  of  the  accident 
there  was  a  slight  curve  towards  the  north,  the  begin- 
ning of  which  was  over  one  hundred  feet  westerly  from 
the  place  where  the  accident  occurred.  At  the  begin- 
ning of  this  curve  the  land  adjoining  on  each  side  of 
the  road  was  substantially  level  with  the  road,  and  up 
to  that  point  the  road  was  straight  and  level.  The 
highway  had  fourteen  feet  of  macadam  surface,  and 
on  each  side  of  this  macadam  surface  there  was  four 
feet  of  dirt  surface.  The  dirt  part  of  the  road  wore 
away  from  use,  and  to  prevent  an  abrupt  shoulder  and 
to  make  it  safe  for  travel  the  state  from  time  to  time 
placed  gravel  on  the  dirt  road  to  bring  the  surface  of 


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Best  v.  State  of  New  York.  275 

Misc.]  Court  of  Glaims,  January,  1921. 

the  dirt  part  of  the  road  level  with  the  macadam  part. 
Just  before  the  accident  the  state  placed  on  each  side 
of  the  macadam  part  of  the  road  at  the  place  of  the 
accident  several  inches  in  thickness  of  loose  gravel  and 
brought  it  up  to  a  level  with  the  macadam  part  of  the 
road  and  left  the  dirt  and  gravel  to  become  hard  and 
packed  by  the  use  of  the  public.  At  the  time  of  the 
accident  the  gravel  had  not  become  hard  or  packed  at 
this  place.  For  several  hundred  feet  the  surface  of  the 
land  on  the  south  was  about  level  with  the  highway, 
but  on  the  north  for  the  same  distance  there  was  an 
abrupt  fall  or  decline  of  about  twelve  feet  from  the 
edge  and  top  of  the  dirt  roadway  to  the  bottom  of  the 
embankment.  There  was  at  the  time  no  guard  rail  or 
other  barrier  placed  at  the  edge  of  the  highway  on 
the  north  where  the  embankment  existed.  From  the 
place  of  the  accident  along  the  bottom  of  the  embank- 
ment and  running  parallel  with  the  road  the  land 
sloped  upward  for  about  one  hundred  feet  in  each 
direction  until  it  reached  the  level  surface  of  the  land 
adjoining  the  highway  both  east  and  west  of  the  place 
where  the  accident  occurred.  Before  any  road  was 
built  at  this  point  there  was  a  large  basin,  and  origin- 
ally a  country  road  was  built  across  the  north  end  of 
this  basin  about  four  feet  below  the  surface  of  the 
present  state  road.  From  the  east  and  west  sides  of 
the  edge  of  the  basin  as  the  road  was  orrginally  built 
there  was  a  descent  each  way  toward  the  place  of  the 
accident  so  that  the  surface  of  the  old  road  on  its  north 
side  was  about  three  feet  below  the  level,  and  on  the 
south  side  about  nine  feet  above  the  level,  of  the  sur- 
face of  the  land  adjoining  the  roadway.  When  the  old 
road  was  built  it  was  done  by  filling  up  the  hollow 
between  the  east  and  west  edges  of  this  basin,  and  on 
the  north  side  of  this  fill  was  placed  a  retaining  wall 
made  of  field  stone,  dry  laid,  running  parallel  with  the 


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276  Bbbt  v.  State  of  New  York. 

Court  of  Claima,  January,  1921.  [Vol.  114. 

road  for  about  100  feet,  commenciiig  about  thirty  feet 
east  and  continuing  to  about  seventy  feet  west  of  the 
place  where  the  accident  occurred.  When  the  state 
road  was  constructed  the  north  line  or  edge  of  the 
state  road  was  placed  about  three  feet  southerly  from 
the  north  edge  of  the  old  road,  and  three  feet  from  the 
edge  of  this  stone  wall,  and  another  fill  was  made  rais- 
ing the  road  about  four  feet  so  as  to  make  the  state 
road  substantially  straight  and  level  at  this  point. 

When  the  steering  gear  of  the  bus  broke  the  driver 
of  the  bus  lost  control  of  it  so  that  it  could  not  be 
guided.  He  applied  both  his  foot  and  emergency 
brakes,  but  the  momentum  carried  the  bus  along  for 
some  distance,  and  while  so  moving  his  left  front 
wheel  ran  on  the  hard  surface  of  the  macadam  road 
and  the  right  wheel  ran  on  the  loose  gravel  part  of 
the  road,  and  this  deflected  the  course  of  the  bus 
toward  the  north  edge  of  the  road.  It  continued  its 
course  very  slowly,  and  when  it  got  to  the  edge  of  the 
road  had  almost  stopped,  but  still  had  momentum 
sufficient  to  bring  the  right  front  wheel  over  the  edge 
of  the  road,  and  at  that  moment  the  bus  overturned 
and  dropped  to  the  bottom  of  the  embankment  in  the 
field  adjoining.  In  going  down  it  struck  the  top  of 
the  retaining  wall  and  tore  some  of  it  out.  The  intes- 
tate was  caught  between  the  top  of  the  seat  in  the  bus 
and  the  bottom  of  the  embankment,  and  was  so  injured 
that  within  a  short  time  after  the  injury  the  child  died 
from  the  effects  thereof.  The  claimant  asserts  that 
the  state  road  at  the  point  of  the  accident  was  defective 
because  the  state  had  placed  loose  gravel  on  the  side 
of  the  road  and  failed  to  erect  a  guard  or  barrier  along 
the  north  side  or  edge  thereof ;  and  that  by  reason  of 
these  defects  the  accident  occurred  from  which  the 
deceased  received  his  injuries  which  caused  his  death. 

The  state  asserts  that  the  deceased  was  guilty  of 


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Best  v.  State  of  New  York.  277 

Misc.]  Court  of  Claims,  January,  1921. 

contributory  negligence  and  that  it  was  not  negligent 
in  putting  loose  gravel  on  the  road  and  not  negligent 
in  failing  to  place  a  guard  or  barrier  at  this  point, 
and  that  a  guard  is  only  placed  along  embankments 
and  dangerous  places  to  warn  persons  traveling  on 
the  highway  of  such  danger,  and  not  placed  there  to 
protect  the  travel  from  going  over  such  bank  by  build- 
ing it  strong  enough  to  prevent  vehicles  from  breaking 
through  the  barrier  and  going  over  such  embankment. 

It  was  not  negligence  for  the  state  to  place  loose 
gravel  on  the  surface  of  the  dirt  road  for  the  purpose 
of  bringing  it  up  to  the  level  of  the  macadam.  It 
could  not  permit  the  dirt  roadway  adjoining  the 
macadam  road  to  wear  down  so  as  to  make  an  abrupt 
shoulder  as  this  would  make  it  dangerous  for  ordinary 
travel  and  we  do  not  think  it  was  negligence  for  the 
state  to  fail  to  roll  or  pack  this  gravel  down  as  no 
amount  of  packing  or  rolling  would  prevent  a  heavy 
vehicle  from  cutting  into  it. 

Originally  there  was  no  liability  on  the  part  of  the 
town  for  any  defects  in  its  highways  and  under  the 
common  law  the  commissioner  of  highways  or  officers 
exercising  similar  function  were  held  liable  for  dam- 
ages if  they  failed  in  their  duty  in  keeping  highways 
reasonably  safe  for  public  travel  when  they  had 
sufficient  funds  to  repair  such  highways. 

The  legislature  by  section  74,  chapter  30  of  the  Laws 
of  1909  made  towns  liable  for  damages  sustained  by 
reason  of  defects  in  highways  sustained  by  persons 
traveling  over  such  highways  and  which  statute  creat- 
ing such  liability  reads  as  follows :  **  Every  town  shall 
be  liable  for  aU  damages  to  persons  or  property  sus- 
tained by  reason  of  any  defect  in  its  highways  or 
bridges,  existing  because  of  the  neglect  of  any  town 
superintendent  of  such  town.** 

Primarily  the  state  is  not  liable  for  negligence  and 


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278  Best  v.  State  of  New  York. 

Court  of  Claims,  January,  192L  [YoL  114. 

cannot  be  sued  in  its  courts  nor  made  liable  for  dam- 
ages. This  is  in  consequence  of  its  sovereignty  and 
the  state  is  always  immune  from  actions  or  liability 
unless  it  expressly  waives  such  immunity  and  assumes 
liability.  Smith  v.  State  of  New  York,  227  N.  Y.  405 ; 
Lewis  V.  State  of  New  York,  96  id.  71 ;  Rexford  v.  State 
of  New  York,  105  id.  229. 

By  section  176  of  the  Highway  Law,  being  chapter 
30  of  the  Laws  of  1909,  and  amendments  thereto,  the 
state  assumed  liability  for  defects  in  its  highways 
where  the  state  highway  was  under  the  patrol  system 
and  the  statute  assuming  such  liability  reads  as 
follows:  **  The  state  shall  not  be  liable  for  damages 
suffered  by  any  person  from  defects  in  state  and 
county  highways,  except  such  highways  as  are  main- 
tained by  the  state  by  the  patrol  system,  but  the 
liability  for  such  damages  shall  otherwise  remain  as 
now  provided  by  law,  notwithstanding  the  construc- 
tion or  improvement  and  maintenance  of  such  high- 
ways by  the  state  under  this  chapter.'' 

Section  74,  chapter  30  of  the  Laws  of  1909,  being 
the  Highway  Law,  wherein  the  town  was  made  liable 
for  damages,  created  liability  only  where  injury  was 
caused  by  reason  of  defects  in  its  highway  and  the 
state  when  it  assumed  liability  by  an  enactment 
through  the  legislature  assumed  such  liability  only  for 
defects  in  its  highways  under  the  patrol  system,  so 
that  in  each  case  in  giving  a  right  of  action  the  legis- 
lature predicated  the  right  to  recover  upon  defects 
in  the  highway;  and  it  must  be  assumed  that  when 
the  state,  through  its  legislature,  assumed  liability 
and  used  the  word  ^'  defect ''  in  the  statute,  that  this 
language  was  to  receive  the  same  interpretation  and 
construction  as  had  been  given  to  the  word  <*  defect  " 
by  judicial  interpretation  and  construction  of  the  act 
bQldin^  tovnp  liftWe  iox  defects  of  highways.     Tbo 


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Best  v.  State  of  New  Yobk.  279 

Misc.]  Court  of  Glauns,  January,  1921. 

state  when  it  created  a  tribunal  to  hear,  try  and  deter- 
mine claims  against  it  provided,  **  in  no  case  shall  any 
liability  be  implied  against  the  state,  and  no  award 
shall  be  made  on  any  claim  against  the  state  except 
upon  such  legal  evidence  as  would  establish  li£j)ility 
against  an  individual  or  corporation  in  a  court  of  law 
or  equity."  Code  Civ.  Pro.  §  264.  The  state  in 
keeping  its  highways  in  repair,  to  make  them  safe  for 
public  travel,  was  obligated  to  place  gravel  upon  the 
sides  of  macadam  roads  from  time  to  time  as  they 
wore  away  from  use  by  the  public  to  prevent  an  abrupt 
shoulder  being  created  or  made ;  and  we  do  not  think 
it  was  negligence  on  the  part  of  the  state  to  follow 
the  ordinary  custom  of  placing  loose  gravel  on  the 
dirt  part  of  the  ordinary  constructed  state  highway 
and  to  bring  it  up  to  the  level  of  the  macadam  sur- 
faced part  of  the  road.  Sharot  v.  City  of  New  York, 
177  App.  Div.  869 ;  affd.,  226  N.  T.  679 ;  King  v.  Village 
of  Port  Ann,  180  id.  496;  Flanshurg  v.  Tovm  of 
Elbridge,  205  id.  423. 

There  can  also  be  no  question  that  when  two  causes 
combine  to  produce  injury  to  a  traveler  upon  a  high- 
way both  of  which  are  in  their  nature  proximate,  the 
one  being  a  palpable  defect  in  the  highway  and  the 
other  some  occurrence  for  which  neither  party  is 
responsible,  the  defendant  is  liable  provided  the  injury 
would  not  have  been  sustained  but  for  such  defect. 
Ring  v.  City  of  Cohoes,  77  N.  Y.  83 ;  Sweet  v.  Perkins, 
196  id.  482;  Thompson  v.  Town  of  Bath,  142  App.  Div. 
331. 

But  before  this  rule  is  applicable  to  this  case  it 
must  be  established  that  the  state  was  guilty  of 
negligence  by  permitting  defects  to  exist  in  its 
highway.  We  have  examined  many  authorities 
where,  under  the  statute  holding  the  towns  liable 
for    defects,    towns    were    held    liable    for   failure 


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280  Best  v.  State  of  New  Yobk. 

Court  of  Claims,  Jazraaryy  1921.  [Vol.  114. 

to  erect  barriers,  but  in  each  of  these  cases 
the  failure  to  erect  a  barrier  and  for  which  the 
town  is  held  liable,  the  facts  were  much  different 
than  they  are  in  this  case.  Usually  there  were  circum- 
stances which  made  the  highway  dangerous  owing  to 
the  fact  that  there  was  a  sharp  curve,  a  narrow  road, 
a  steep  hill,  or  many  other  circumstances  which 
ordinarily  justified  a  jury  in  finding  that  the  commis- 
sioner of  highways  of  the  town  was  negligent  in  not 
placing  a  barrier  at  such  locations.  And  while  it  is 
said  the  question  of  negligence  and  whether  a  barrier 
should  be  placed  along  the  highway  for  the  protection 
of  the  public  is  a  question  of  fact  for  the  jury,  yet  as 
was  said  in  the  case  of  Lane  v.  Toum  of  Hancock,  142 
N.  T.  510,  by  Judge  O'Brien  writing  the  opinion,  on 
page  519:  **  The  elements  which  enter  into  the  ques- 
tion of  negligence  are  generally  of  such  a  nature  as  to 
make  it  a  question  of  fact.  Even  where  the  general 
facts  are  not  in  dispute,  as  here,  but  the  inference  to 
be  drawn  from  them  is  not  clear  and  certain,  but 
doubtful,  the  case  must  be  submitted  to  the  jury.  But 
in  every  case  there  is  always  a  preliminary  question 
for  the  court  as  to  whether  there  is  any  evidence  upon 
which  a  jury  could  properly  find  a  verdict  for  the 
party  producing  it,  and  upon  whom  the  burden  of 
proof  is  imposed.  If  there  is  not  the  court  must  direct 
a  non-suit  or  a  verdict  as  the  case  may  require.** 

This  rule  was  followed  in  Lane  v.  Town  of  Hancock, 
142  N.  T.  510;  Coney  v.  Totvn  of  OUboa,  55  App.  Div. 
111. 

In  the  case  on  trial  the  roadway  was  twenty-two  feet 
in  width.  It  was  perfectly  straight  for  a  long  distance, 
was  substantially  level  with  the  lands  adjoining  on  one 
side  and  with  an  embankment  of  about  twelve  feet  at 
the  deepest  point  on  the  other  side,  and  as  the  state 
can  only  be  held  liable  where  the  same  state  of  facts 


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Bbbt  v.  State  of  New  York.  281 

Mise.]  Court  of  Claims,  January,  1921. 

would  make  a  town  liable  for  defects  in  its  highway 
the  same  rule  should  be  applied  in  each  case.  Under 
the  circumstances  if  this  action  was  against  a  town 
the  town  under  the  authorities  would  not  be  liable 
because  the  town  or  its  commissioner  could  not  reason- 
ably be  held  to  anticipate  an  emergency  of  the  kind 
that  occurred  in  this  case. 

There  are  many  authorities  in  this  state  which 
hold  where  the  conditions  are  similar  to  those  in  the 
case  on  trial  and  where  an  emergency  occurred  which 
caused  an  accident,  that  such  condition  was  not  a 
defect  and  it  was  further  held  that  it  was  not  negli- 
gence on  the  part  of  its  commissioner  to  fail  to  erect 
barriers  at  such  places. 

It  has  recently  been  decided  by  the  Appellate 
Division,  third  department,  where  the  circumstances 
were  the  same  as  they  are  in  this  case  where  the  plain- 
tiff was  driving  an  automobile  truck  upon  an  improved 
macadam  highway,  smooth  and  level  for  twenty  feet 
in  width,  and  the  automobile  locked  wheels  with  a 
passing  buggy,  and  in  doing  so  the  automobile  turned 
at  right  angles  to  the  road  and  went  head  over  the 
embankment,  that  the  commissioner  of  highways  was 
not  negligent  in  failing  to  erect  barriers  at  a  location 
of  this  kind.  And  it  was  further  held  that  he  was 
under  no  duty  to  anticipate  such  an  emergency. 
Dorrer  v.  Town  of  Callicoon,  183  App.  Div.  186, 

Under  the  former  rule  where  the  commissioner  was 
liable,  and  after  the  enactment  of  the  statute  making 
the  town  liable  for  defects  in  the  highway,  it  has  fre- 
quently been  held  that  the  town  was  not  an  insurer  of 
the  safety  of  persons  traveling  upon  the  highway,  but 
was  only  required  to  use  ordinary  prudence  and  care ; 
and  the  commissioner  and  town  were  held  to  the 
sensible  rule  which  required  them  to  exercise  ordi- 
nary care,  and  at  no  time  was  the  commissioner 
expected  to  anticipate  some  unusual  and  unforeseen 


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282  Best  v.  State  of  New  Yobk. 

Court  of  Claims,  January,  1921.  [Vol.  114. 

event  and  gnard  against  it.  It  cannot  be  said  that 
a  commissioner  of  highways  under  this  rule  wonld 
have  been  expected  to  anticipate  an  emergency  which 
occurred  in  this  case.  While,  as  a  rule,  it  is  a  question 
\  of  fact  for  a  jury  to  determine  whether  the  commis- 
sioner was  negligent  from  all  the  facts  and  circum- 
stances, in  this  case  there  were  no  disputed  facts  as  to 
the  location,  distance  and  surrounding  circumstances ; 
and  under  numerous  authorities  where  the  roadway 
was  of  sufficient  width  and  was  a  straight  road  and 
substantially  level,  it  was  held  as  a  matter  of  law  that 
it  was  not  negligence  to  fail  to  erect  barriers  or  guards 
where  there  was  an  embankment  so  near  the  road  as 
to  permit  vehicles  going  over  the  bank  where  some 
sudden  or  unforeseen  emergency  occurs.  Lane  y. 
Town  of  Hancock,  142  N.  T.  510;  Waller  v.  Town  of 
Hebron,  5  App.  Div.  577;  17  id.  158;  131  N.  Y.  447; 
Hubhell  V.  TonkerSy  104  id.  434;  Monk  v.  Town  of  New 
Utrecht,  Id.  552;  Wade  v.  Town  of  Worcester,  134 
App.  Div.  51, 

We  do  not  think  that  the  fact  that  there  was  loose 
gravel  on  the  dirt  part  of  this  road,  placed  there  by 
the  state,  was  anything  which  would  call  upon  a  com- 
missioner if  he  had  charge  of  the  road  to  anticipate 
danger  by  reason  thereof.  It  was  a  part  of  the  duty 
of  the  state  to  make  that  portion  of  the  road  safe  for 
travel  and  not  allow  it  to  wear  down,  and  in  doing  this 
the  state  was  not  negligent  in  failing  to  anticipate  the 
emergency  that  occurred  at  the  time  of  the  accident 
in  this  case.  The  authorities  cited  hold  that  the  con- 
ditions as  they  existed  at  the  time  of  the  accident  to 
the  claimant  were  not  a  defect.  The  claim  of  the  claim- 
ant should,  therefore,  be  dismissed. 

AcKERSoN,  P.  J.,  concurs. 

Claim  dismissed. 


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Matter  of  Milleb.  283 

Mise.]      Surrogate's  Court,  Delaware  County,  January,  1921. 


Matter  of  the  Application  of  Charles  F.  MoPherson, 
as  Executor  of  the  Will  of  Eujl  J.  Miller^  to  Carry 
Out  a  Contract  of  Sale  of  Real  Estate. 

(Surrogate's  Court,  Delaware  County,  January^  1921.) 

Executors  and  administrators  —  when  order  will  be  made  direct- 
ing executor  to  convey  real  estate  pursuant  to  contract  — 
wins  — estoppel— Oode  Oiv.  Pro.  §  2697. 

Where  by  a  deed  of  conveyance  of  a  farm,  containing  a  reser- 
vation to  the  grantor  of  the  house  and  lot,  a  part  of  the  farm, 
it  was  covenanted  and  agreed  that  the  grantee,  after  the  death 
of  his  grantor  or  whenever  she  was  ready  to  sell,  should  have 
the  option  of  buying  the  house  and  lot,  an  order  may  be  granted 
nnder  section  2697  of  the  Code  of  Civil  Procedure,  .directing 
the  executor  of  the  grantor  to  execute  and  deliver  to  said 
grantee  a  deed  of  the  house  and  lot. 

The  fkct  that  said  grantee  when  the  will  was  read,  by  which 
his  grantor  devised  the  house  and  lot  subject  to  the  option 
given  to  him,  stated  that  he  did  not  desire  the  house  and  lot 
mentioned,  did  not  estop  him  from  claiming  his  rights  undei 
his  contract  with  the  testatrix. 

Proceeding  nnder  section  2697  of  the  Code  of  Civil 
Procednre  by  the  executor  of  the  last  will  and  testa- 
ment of  Ella  J.  Miller,  deceased,  for  an  order  of  this 
court  directing  the  executor  to  execute  and  deliver  a 
deed 

On  or  about  the  21st  day  of  March,  1917,  the  testa- 
trix and  Frank  T.  Miller  entered  into  a  contract  under 
seal  by  which  it  was  provided  that  the  testatrix  having 
on  that  date  sold  and  conveyed  to  Miller  her  farm  in 
the  town  of  Bovina,  and  having  reserved  the  house  and 
lot  which  was  a  part  of  said  farm,  it  was  covenanted 
and  agreed  that  said  Frank  T.  Miller  should  have  the 
privilege  or  option  of  buying  said  house  and  lot  for  the 
sum  of  $1,500  after  the  death  of  the  testatrix  or  when- 


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284  Matteb  of  Miller. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.114, 

ever  she  was  ready  to  sell  the  property.  The  agree- 
ment applied  to  and  was  to  bind  the  heirs,  executors 
and  administrators  of  the  respective  parties. 

Ella  J.  Miller,  the  testatrix,  thereafter  on  the  23d 
day  of  Jnly,  1918,  made  her  last  will  and  testament 
by  the  2d  paragraph  of  which  she  provided  as  follows : 

''  Second.  I  give,  devise  and  bequeath  to  my  sister 
Mrs.  Elizabeth  J.  Bussell  my  house  and  lot  in  Bovina 
Center,  N.  T.,  to  her,  her  heirs  and  assigns  forever, 
said  house  and  lot  being  subject  to  an  option  given  by 
me  to  Frank  T.  Miller.  If  at  my  death  the  said  Frank 
T.  Miller  accepts  the  house  and  lot  at  $1,500  the  price 
agreed  upon,  then  I  give  and  bequeath  to  my  said 
sister  the  $1,500  in  place  of  the  house  and  lot   *    *    *.  ^  * 

Ella  J.  Miller  died  on  or  about  the  3d  day  of  June, 
1920.  Her  last  will  and  testament  was  duly  admitted 
to  probate  on  or  about  the  14th  day  of  June,  1920,  and 
letters  testamentary  issued  to  the  petitioner  herein. 

A  short  time  after  the  death  of  the  testatrix  her  last 
will  and  testament  wa^  opened  by  Thomas  Gordon,  the 
scrivener  who  drew  the  will,  in  the  presence  of  her 
relatives  and  was  read  to  them.  It  is  conceded  that 
when  the  2d  paragraph  of  such  will  was  read,  Frank 
T.  Miller  stated  that  he  did  not  desire  the  house  and 
lot  mentioned,  that  he  already  had  a  house,  and  Mr. 
Gordon  stated,  **  Then  the  property  belongs  to  Mrs. 
Euasell." 

After  the  will  was  probated,  Mr.  Miller  advised  the 
executor  that  he  desired  the  place  and  told  him  he 
wanted  the  deed.  The  .  executor  testifies  that  Mr. 
Miller  told  him  to  this  effect  within  a  month  after  the 
will  was  probated. 

The  executor  has  instituted  this  proceeding  by  a 
petition  under  section  2697  of  the  Code  and  cited  aU  of 
the  i)erson8  interested  in  the  estate  of  Ella  J.  Miller. 

Elizabeth  J.  Bussell,  the  devisee  mentioned  in  the 


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Matter  of  Miller.  285 

Misc.]      Surrogate's  Court,  Delaware  County,  January,  1921. 

2d  paragraph  of  the  will,  has  appeared  and  objectgr  to 
an  order  being  made  directing  a  conveyance  of  the 
property  in  question  to  Frank  T.  Miller  upon  the 
ground  that  he  has  waived  his  right  to  receive  a  con- 
veyance therefor. 

Hamilton  J.  Hewitt,  for  Charles  F.  McPherson, 
executor. 

Fred  W.  Youmans,  for  Frank  T.  Miller. 

Edward  O'Connor,  for  Elizabeth  J.  RusselL 

McNaught,  S.  The  facts  are  undisputed  in  this 
proceeding.  The  agreement  made  between  the  testa- 
trix and  Frank  T.  Miller  on  March  21, 1917,  was  to  all 
intents  and  purposes  a  contract  for  the  conveyance 
of  real  estate  which  bound  not  only  the  parties,  but 
their  heirs,  executors  and  administrators.  The  testa- 
trix could  not  by  any  provision  in  her  will  or  by  any 
act  of  hers  deprive  Miller  of  his  rights  under  such 
agreement.  This  fact  is  recognized  by  the  language 
of  the  2d  paragraph  of  the  wilL  The  provision  in  both 
the  contract  and  will  is  practically  the  same  in  regard 
to  the  time  of  performance.  In  the  contract  the  lan- 
guage is  **  after  her  death;'*  in  the  will  the  language 
used  is  **  at  my  death." 

In  any  event  Miller  would  have  been  entitled  to  a 
reasonable  time  in  which  to  exercise  his  right  to  take 
the  property  and  was  not  bound  to  determine  whether 
he  would  take  the  property  or  not  until  such  time  after 
the  death  of  the  testatrix  as  the  will  had  been  probated 
and  the  executor  duly  qualified,  for  until  such  time  no 
one  was  in  a  position  or  would  have  been  in  a  position 
to  perform  the  contract  entered  into  by  the  testatrix. 

The  sole  question  is  whether  the  statement  or 
remark  made  by  Miller  when  the  will  was  read  con- 


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286  Matter  of  Miller. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114, 

stituted  a  waiver  and  relinquishment  of  his  rights 
nnder  the  contract  so  that  he  could  not  thereafter 
enforce  the  same. 

The  attention  of  the  court  has  not  been  called  to  any 
case  directly  in  point,  nor  has  the  court  been  able 
to  discover  a  parallel  case.  The  doctrine  of  waiver 
is  presented  most  frequently  in  those  cases  which  have 
arisen  out  of  litigation  over  insurance  policies,  but  it 
is  a  doctrine  of  general  application  confined  to  no 
particular  class  of  cases.  A  waiver  has  been  defined 
to  be  the  intentional  relinquishment  of  a  known  right. 
It  is  voluntary  and  implies  an  election  to  dispense 
with  something  of  value  or  forego  some  advantage 
which  the  party  waiving  it  might  at  its  option  have 
demanded  or  insisted  upon.  Cowenhoven  v.  Ball,  118 
N.  Y.  234. 

In  the  case  of  Draper  v.  Oswego  County  F.  R.  Assn., 
190  N.  Y.  12,  16,  Chief  Judge  Cullen,  in  speaking  for 
the  court  upon  this  subject,  said:  **  While  that  doc- 
trine and  the  doctrine  of  equitable  estoppel  are  often 
confused  in  insurance  litigation,  there  is  a  dear  dis- 
tinction between  the  two.  A  waiver  is  the  voluntary 
abandonment  or  relinquishment  by  a  party  of  some 
right  or  advantage.  As  said  by  my  brother  Vann  in 
the  Kierncm  Case  (150  N.  Y.  190) :  *  The  law  of 
waiver  seems  to  be  a  technical  doctrine,  introduced 
and  applied  by  the  courts  for  the  purpose  of  defeating 
'  forfeitures.  •  •  •  While  the  principle  may  not  be 
easily  classified,  it  is  well  established  that  if  the  words 
and  acts  of  the  insurer  reasonably  justify  the  conclu- 
sion that  with  full  knowledge  of  all  the  facts  it 
intended  to  abandon  or  not  to  insist  upon  the  particu- 
lar defense  afterwards  relied  upon,  a  verdict  or  find- 
ing to  that  effect  establishes  a  waiver,  which,  if  it 
once  exists,  can  never  be  revoked.^  The  doctrine  of 
equitf^ble  estoppel,  or  estoppel  in  pais^  is  Xh^X  a  party 


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Mattbb  op  Milleb.  287 

Misc.]      Surrogate's  Court,  Delaware  County,  January,  1921. 


may  be  precluded  by  his  acts  and  conduct  from  assert- 
ing a  right  to  the  detriment  of  another  party  who, 
entitled  to  rely  on  such  conduct,  has  acted  upon  it. 
•  *  *  As  already  said,  the  doctrine  of  waiver  is  to 
relieve  against  forfeiture;  it  requires  no  considera- 
tion for  a  waiver,  nor  any  prejudice  or  injury  to  the 
other  party.**  To  the  same  effect,  see  Knarston  v, 
Manhattan  Life  Ins.  Co.,  140  Cal.  57. 

At  the  time  of  the  alleged  waiver  no  person  was  in 
a  position  to  act  upon  it.  It  does  not  appear  that  Mrs. 
Bussell  or  any  other  person  has  in  any  manner  acted 
upon  said  waiver  or  been  in  any  way  affected  by  it. 
At  the  time  the  will  was  read  to  the  relatives  it  was 
unknown  to  any  of  the  parties  whether  the  will  was 
a  valid  testamentary  disposition  of  the  property  of 
the  testatrix  or  not.  It  was  unknown  whether  the  will 
would  be  admitted  to  probate  or  rejected,  and  no  one 
has  been  affected  by  the  statement  made  by  Frank  T. 
Miller. 

The  important  question  for  determination  is 
whether  Miller  because  of  his  statement  when  the  will 
was  read  is  estopped  from  claiming  his  rights  under 
the  agreement  of  March  21,  1917. 

In  New  York  Rubber  Co.  v.  Rothery,  107  N.  T.  310, 
Judge  Peckham  defines  an  estoppel  as  follows:  '*  To 
constitute  it  the  person  to  be  estopped  must  do  some 
act  or  make  some  admission  with  the  intention  of 
influencing  the  conduct  of  another,  or  that  he  had 
reason  to  believe  would  influence  his  conduct,  and 
which  act  or  admission  is  inconsistent  with  the  claim 
he  proposes  now  to  make.  The  other  party,  too,  must 
have  acted  upon  the  strength  of  such  admission  or 
conduct.'' 

A  party  may  be  precluded  by  his  acts  and  conduct 
from  asserting  a  right  to  the  detriment  of  another 


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288  Matter  of  Sullabd. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

party,  who,  entitled  to  rely  on  such  conduct,  has  acted 
upon  it.    Clark  v.  West,  193  N.  T.  349. 

There  is  no  evidence  and  it  is  not  even  contended 
Mrs.  Bussell  has  in  any  manner  acted  upon  the  state- 
ment of  Miller  or  been  affected  to  her  detriment  by 
reason  of  such  statement. 

It  is,  therefore,  the  conclusion  of  the  court  that  the 
objections  of  Mrs.  Bussell  must  be  overruled  and  that 
Frank  T.  Miller  under  his  contract  with  the  testatrix 
is  entitled  to  receive  from  the  executor  a  conveyance 
of  the  property  in  question. 

The  court  has  not  overlooked  in  reaching  this  con- 
clusion the  decision  of  the  Court  of  Appeals  in  the 
case  of  Alsens  A.  P.  C.  Works  v.  Degnon  Contracting 
C7o.,  222  N.  Y.  34. 

A  decree  may  be  prepared  in  conformity  to  the 
prayer  of  the  petitioner  herein  and  the  form  of  the 
same  may  be  agreed  upon  by  the  parties,  or  may  be 
settled  before  the  surrogate  at  Delhi  any  Monday. 

Decreed  accordingly. 


Matter  of  the  Judicial  Settlement  of  the  Accounts  of 
Jane  M.  Sullard  as  Temporary  Administratrix  of 
the  Estate  of  George  F.  Suu^abd,  Absentee. 

(Surrogate's  Court,  Delaware  County,  January,  1921.) 

Surrogates'  Courts  — jurisdiction  — when  real  estate  of  surety 
not  impressed  with  an  equitable  lien — executors  and  admin- 
istrators —  trustees. 

Upon  a  stipulation  between  the  temporary  administratrix  of 
an  absentee  and  the  substituted  trustee,  the  amount  of  the 
defalcation  or  indebtedness  of  the  absentee,  as  testamentary 
trustee,  was  agreed  upon  and  approved  by  the  surrogate  and 
though  no  order  was  entered  the  amount  so  agreed  upon  was 
accepted  by  the  administratrix  as  a  claim  against  the  estate  of 


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Matter  of  Sullard.  289 

Misc.]     Surrogate's  Court,  Delaware  County,  January,  1921. 

the  absentee.  An  order  duly  granted  directing  the  sale  of  two 
certain  pareels  of  real  estate  of  the  absentee  provided  that  the 
right,  lien  or  elaim  of  priority  of  claimant  or  equities  of  the 
substituted  trustee,  who  objected  to  the  sale  of  one  of  the  said 
parcels,  be  transferred  to  the  avails  from  the  sale  of  the  said 
x«al  estate  and  the  right  thereto  determined  when  the  matter 
of  the  disposition  of  the  proceeds  of  the  sale  of  both  parcels 
came  before  the  oonrt  for  determination.  The  father  of  the 
absentee  who  was  one  of  the  sureties  on  his  official  bond  as 
testamentary  trustee,  devised  the  parcel,  the  sale  of  which  was 
objected  to  by  the  substituted  trustee,  to  his  widow  for  life, 
since  deceased,  then  to  the  absentee.  Upon  the  judicial  settle- 
ment of  the  accounts  of  the  administratnz,  all  necessary  par- 
ties being  in  court,  held,  that  the  court  had  jurisdiction  to 
determine  the  rights  of  the  various  creditors  and  claimants  to 
payment  out  of  the  proceeds  of  the  real  estate  including  the 
parcel  devised  to  the  absentee  by  his  father's  will. 

The  claim  of  the  substituted  trustee  to  be  entitled  to  priority 
or  preference  of  payment  from  the  proceeds  of  the  sale  •of  the 
real  estate  devised  to  the  absentee,  on  the  ground  that  he 
received  it  impressed  with  an  equitable  lien  from  his  father 
who  was  surety  for  the  faithful  performance  of  the  absentee's 
official  duties  as  testamentary  trustee  and  also  subject  to  the 
absentee's  liability  as  an  heir  of  such  surety,  cannot  be  allowed 
and  the  proceeds  of  sale  must  be  applied  pro  rata  in  satis- 
faction of  all  of  the  obligations  of  the  absentee. 

JudciAL  settlement  of  accounts  of  temporary 
administratrix  involving  also  the  disposition  of  the 
proceeds  of  the  sale  of  certain  real  estate  for  the  pay- 
ment of  debts. 

George  F.  Sullard,  a  resident  of  the  town  of  Frank- 
lin in  the  county  of  Delaware,  disappeared  on  the  27th 
day  of  June,  1916,  and  has  not  since  been  heard  from. 
On  the  15th  day  of  July,  1916,  his  ^^^fe,  Jane  M. 
Sullard,  was  appointed  temporary  administratrix  of 
his  estate.  The  estate  has  since  been  administered 
under  the  provisions  of  the  Code  of  Civil  Procedure 
as  that  of  an  absentee. 

The  administratrix  reduced  the  personal  property 
19 


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290  MatTEE    of    SuiiLABli. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

to  cash  and  a  decree  was  made  in  this  proceeding  on 
the  31st  day  of  May,  1918,  settling  the  account  to  such 
date  and  directing  the  payment  of  a  dividend  of 
twenty-four  per  cent  to  the  creditors  of  the  absentee. 

The  absentee  was  trustee  under  the  last  will  and 
testament  of  Anna  D.  Lockwood,  deceased,  for  the 
benefit  of  Nellie  Gilliland  and  Josephine  Otis.  Sub- 
sequent to  the  disappearance  of  George  F.  Sullard, 
application  was  made  to  the  Supreme  Court  for  the 
appointment  of  a  substituted  trustee  and  an  order 
was  made  appointing  Clinton  F.  McHenry  as  sub- 
stituted testamentary  trustee  of  the  estate  of  Anna 
D.  Lockwood.  Such  order  further  diiected  the  absentee 
and  the  temporary  administratrix  to  account  for  all 
the  acts  and  proceedings  of  said  George  F.  Sullard 
as  such  testamentary  trustee. 

It  appears  from  the  record  that  thereafter  the 
administratrix  filed  an  account  in  the  Supreme  Court 
but  it  does  not  appear  whether  an  order  was  made  in 
relation  thereto  or  not.  The  record  discloses  that 
the  substituted  trustee  presented  a  claim  against  the 
estate  of  the  absentee,  and  such  claim  was  com- 
promised, adjusted  and  accepted  as  a  claim  against 
the  estate  of  the  absentee  at  the  sum  of  $2,370.80  as 
of  May  31,  1918. 

A  proceeding  was  thereafter  instituted  by  the 
temporary  administratrix  for  an  order  directing  the 
sale  of  the  real  estate  of  the  absentee  for  the  payment 
of  debts.  It  appears  from  the  petition  in  such  pro- 
ceeding that  the  real  estate  consisted  of  two  parcels, 
one  designated  as  parcel  No.  1,  known  as  the  **  store 
property,**  and  the  other  designated  as  parcel  No.  2, 
known  as  the  **  house  and  lot.'*  Upon  the  return  day 
of  the  citation  in  such  proceeding,  the  substituted 
trustee  duly  appeared  and  objected  to  the  sale  of  that 
portion  of  the  real  estate  designated  as  parcel  No.  1 


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Matter  of  SulliArd.  291 

- —  I  ■  — ~ — — — — .— ^-^.^-^^— — — — — 

Misc.]     Surrogate's  Court,  Delaware  County,  January,  1921. 

upon  the  ground  that  such  real  estate  was  owned  by 
Albert  E.  SuUard,  the  father  of  the  absentee  and  one 
of  the  sureties  upon  his  oflBcial  bond  as  trustee  of  the 
estate  of  Anna  D.  Lockwood,  and  alleging  the  absentee 
had  failed  to  account  for  moneys  received  by  him  as 
such  trustee,  and  the  parcel  in  question  was  impressed 
with  a  lien  in  the  sum  of  $2,370.80  in  favor  of  the  trust 
estate.  An  order  was  thereupon  made  by  the  then 
surrogate  on  the  28th  day  of  October,  1918,  directing 
the  sale  of  both  parcels,  but  providing,  after  reciting 
the  objections  of  the  substituted  trustee,  that  the  right, 
lien  or  claim  of  priority  of  payment  or  equities  of  the 
substituted  trustee  be  transferred  to  the  avails  from 
the  sale  of  the  said  real  estate  and  the  right  thereto 
be  determined  when  the  matter  of  the  disposition  of 
the  proceeds  came  before  the  court  for  determination. 
Parcel  No.  1  was  thereafter  sold  for  the  sum  of  $1,625. 

It  is  conceded  that  parcel  No.  1  was  owned  by  Albert 
E.  Sullard,  the  father  of  the  absentee  in  his  lifetime; 
that  he  was  one  of  the  sureties  upon  the  bond  of  the 
absentee  as  trustee  under  the  will  of  Anna  D.  Lock- 
wood,  which  bond  was  executed  on  the  9th  day  of 
March,  1891;  that  Albert  E.  Sullard  died  November 
19,  1898,  leaving  a  last  will  and  testament  which  was 
duly  probated  and  that  Sarah  Sullard,  the  widow  of 
Albert  E.  Sullard,  died  October  26,  1907. 

It  appears  from  the  will  of  Albert  E.  Sullard  that 
the  real  estate  known  as  parcel  No.  1  was  devised 
to  the  widow  for  life  and  then  to  George  F.  Sullard, 
the  absentee,  he  becoming  the  owner  thereof  upon  the 
termination  of  the  life  estate  of  his  mother. 

The  substituted  trustee  claims  he  is  entitled  to 
preference  and  to  priority  of  payment  from  the  pro- 
ceeds of  the  sale  of  parcel  No.  1,  alleging  the  bond  of 
the  absentee  and  trustee  was  the  joint  and  several 
obligation  of  the  principal  and  sureties  and  bound 


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292  Matter  of  SuLiiAiu). 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

themselves,  their  heirs,  executors  and  administrators, 
thereby  creating  an  equitable  lien  upon  the  real  estate 
of  the  surety,  Albert  E.  Sullard.  He  claims  when  the 
real  estate  passed  under  tho  will  of  Albert  B.  Sullard 
to  the  absentee,  George  F.  Sullard,  the  absentee  took 
the  property  devised  to  him  subject  to  the  liability  of 
the  surety  upon  the  bond  and  impressed  with  an 
equitable  lien,  and  for  such  reasons  he  is  entitled  to 
priority  of  payment,  and  the  proceeds  of  the  sale  of 
said  parcel  should  be  first  applied  in  payment  of  the 
amount  it  is  conceded  is  due  from  the  absentee  as 
trustee. 

Wm.  F.  White  (Samuel  H.  Fancher,  of  counsel),  for 
Jane  M.  Sullard,  administratrix. 

Albert  F.  Barnes,  for  Clinton  F.  McHenry,  substi- 
tuted trustee  under  the  last  will  and  testament  of 
Anna  D.  Lockwood. 

Seybolt  &  Seybolt,  for  Alton  0.  Potter. 

Edwin  A.  Mackey,  for  George  D.  Chamberlain  and 
others. 

McNaught,  S.  The  amount  of  the  defalcation  or 
indebtedness  of  George  F.  Sullard,  the  absentee,  as 
trustee  under  the  will  of  Anna  D.  Lockwood  was 
agreed  upon  by  a  stipulation  between  the  administra- 
trix and  the  substituted  trustee  and  approved  by  the 
then  surrogate  of  the  county  of  Delaware.  The 
amount  was  fixed  at  the  sum  of  $2,370.80.  It  does  not 
appear  that  there  has  been  a  judicial  settlement  or  an 
order  entered  in  any  court  fixing  this  amount,  but  it 
appears  to  have  been  agreed  upon  and  approved  by  the 
surrogate. 

Two  questions  are  presented  for  determination: 


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Matter  of  Sullard.  293 

Misc.]     Surrogate's  Court,  Delaware  County,  January,  1921. 

First,  the  jurisdiction  of  the  Surrogate's  Court  to 
determine  the  rights  of  the  various  creditors  and 
claimants  to  payment  of  their  claims  out  of  the  pro- 
ceeds of  the  sale  of  the  real  estate  of  the  absentee, 
including  parcel  No.  1  devised  to  him  by  the  will  of 
his  father,  Albert  E.  Sullard.  Second,  whether  the 
claim  of  the  substituted  trustee  is  entitled  to  priority 
or  preference  of  payment  over  the  claims  of  other 
creditors  to  the  proceeds  of  parcel  No.  1,  the  so-called 
store  property  owned  by  Albert  E.  Sullard  in  his  life- 
time. 

All  of  the  necessary  parties  are  in  court.  Every 
person  who  could  in  any  manner  be  interested  in  the 
determination  of  the  questions  involved  is  a  party  to 
this  proceeding  There  is  no  dispute  as  to  title  of 
the  property  sold,  the  source  from  which  title  was 
derived,  or  the  amount  of  the  proceeds.  The  claims 
against  the  absentee  have  been  fixed  and  determined. 
The  amount  due  the  substituted  trustee  has  been 
settled,  agreed  upon  and  approved  by  the  surrogate. 
The  sole  question  is  whether  the  proceeds  shall  be 
applied  pro  rata  to  all  the  debts  of  the  absentee  or 
whether  the  substituted  trustee  is  entitled  to  have 
all  of  the  proceeds  of  the  sale  of  the  store  property 
applied  in  payment  of  his  claim. 

The  Surrogate's  Court  has  jurisdiction  upon  a  judi- 
cial settlement  to  try  and  determine  all  questions  legal 
and  equitable  arising  between  all  of  the  parties  to  the 
proceeding.  Code  Civ.  Pro.  §  2510.  In  proceedings 
to  sell  real  estate  for  the  payment  of  debts,  the  Surro- 
gate's Court  has  jurisdiction  to  try  and  determine  all 
claims,  demands  or  charges  relative  to  the  proceeds  of 
such  sale.    Code  Civ.  Pro.  §  2706. 

The  surrogate  has  jurisdiction  and  power  to  deter- 
mine the  validity  of  all  claims  against  or  upon  an 
estate.    People  ex  rel.  Adams  v.  Westhrook,  61  How. 


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294  Matter  of  Sullard. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

Pr.  138;  Kammerrer  v.  Ziegler,  1  Dem.  177;  Matter  of 
Haxtun,  102  N.  T.  157;  Matter  of  Pirie,  133  App.  Div. 
4t31i  Matter  of  Roberts,  214  N.  Y.  369. 

The  claim  of  the  substituted  trustee  to  preference 
and  priority  of  payment  over  all  other  creditors,  of 
the  proceeds  of  the  sale  of  the  store  property,  is  based 
upon  the  theory  that  Albert  E.  Sullard,  from  whom 
the  absentee  derived  title,  and  who  was  the  owner  of 
the  property  during  his  lifetime,  being  also  a  surety 
upon  the  bond  of  the  absentee  as  trustee,  had  im- 
pressed such  property  with  an  equitable  lien  by  becom- 
ing surety  for  the  faithful  performance  of  his  oflScial 
duties  by  the  trustee.  It  is,  therefore,  contended  that 
when  the  absentee  received  the  property  by  devise 
from  his  father,  he  received  it  impressed  with  such 
lien  and  also  subject  to  his  liability  as  an  heir  of  the 
surety. 

Clearly  the  assumption  of  liability  as  a  surety  by 
Albert  E.  Sullard  did  not  create  any  lien  upon  his 
real  estate.  The  bond  was  a  guaranty  the  principal 
would  perform  his  duty.  Until  such  time  as  a  default 
occurred  it  was  a  contingent  liability.  It  is  not 
claimed  that  a  default  had  occurred,  nor  that  there 
was  any  existing  debt  due  from  Albert  E.  Sullard  nor 
any  claim  against  him  aside  from  his  contingent 
liability  upon  the  bond  at  the  time  of  his  death. 

The  liability  of  Albert  E.  Sullard  as  surety  was 
such  that  his  liability  upon  the  bond  after  his  death 
became  and  remained  the  liability  of  his  estate  and 
his  heirs.  The  death  of  one  who  is  a  surety  upon  an 
official  bond  does  not  relieve  his  estate  of  liability  for 
the  principal's  after  management  of  his  trust.  Mun- 
dorff  V.  W angler,  57  How.  Pr.  372 ;  Stevens  v.  Stevens, 
2  Dem.  469;  Holthausen  v.  Kells,  18  App.  Div.  80. 

The  obligation  of  the  surety  bound  himself,  his 
heirs,  and  legal  representatives.     The  estate  of  the 


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Matter  of  Sullard.  295 

Misc.]     Surrogate's  Court,  Delaware  County,  January,  1921. 

surety,  and,  therefore,  his  heir,  George  F.  Sullard, 
was  liable  upon  the  bond  for  the  subsequent  default 
of  the  trustee,  but  there  was  no  liability  fixed  and 
determined  at  the  time  of  the  death  of  Albert  E. 
Sullard,  the  surety.  The  property,  therefore,  could 
not  be  sold,  and  it  is  not  contended  that  it  has  been 
sold,  as  property  of  the  surety  to  satisfy  an  obligation 
upon  his  part  which  was  in  the  nature  of  a  debt. 

The  exhaustive  briefs  presented  by  able  counsel  fail 
to  call  the  attention  of  the  court  to  a  single  authority 
in  this  or  any  other  jurisdiction  which  is  directly  in 
point.  Careful  research  has  failed  to  disclose  a  case 
where  the  same  claim  has  been  made  under  a  similar 
state  of  facts. 

The  situation  presented  resolves  itself  into  this  con- 
dition. The  principal  by  devise  becomes  the  owner  of 
the  real  property  of  his  deceased  surety.  He,  there- 
fore, is  principal  and  as  heir  of  the  surety  vested  with 
the  estate  still  liable  upon  the  bond.  A  default  occurs 
(when  does  not  appear)  and  it  is  determined  there  is 
due  from  the  estate  of  the  principal  a  certain  sum 
(in  this  case,  $2,370.80).  The  successor  of  the  prin- 
cipal now  claims  to  be  entitled  to  the  full  proceeds  of 
the  parcel  of  real  estate  which  has  so  descended  by 
devise  to  the  original  trustee  because  he  received  it 
impressed  with  a  lien.  This  contention  it  is  impossible 
to  sustain  as  the  bond  itself  created  no  lien. 

The  only  other  theory  upon  which  the  claim  of  the 
substituted  trustee  could  be  sustained  is  under  the 
provisions  of  section  101  of  the  Decedent  Estate  Law, 
formerly  section  1843  of  the  Code,  which  provides: 
"  The  heirs  of  an  intestate,  and  the  heirs  and  devisees 
of  a  testator,  are  respectively  liable  for  the  debts  of 
the  decedent,  arising  by  simple  contract,  or  by 
specialty,  to  the  extent  of  the  estate,  interest,  and 
right  in  the  real  property,  which  descended  to  them 


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296  Matter  or  SuLiiARD. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.114. 

from,  or  was  effectually  devised  to  them  by,  the 
decedenf 

The  liability  upon  the  death  of  the  surety  became 
not  the  liability  of  the  testator  Albert  E.  SuUard,  but 
of  the  estate  held  by  the  devisee  George  F.  Sullard  to 
perform  created  by  reason  of  the  execution  of  the  bond 
by  the  surety.  When  the  property  descended  by 
devise  to  George  F.  Sullard,  the  estate  was  liable  for 
the  debts  of  Albert  E.  Sullard  and  also  responsible  to 
answer  for  his  liability  as  surety  upon  the  bond;  but 
at  that  time  the  liability  was  only  contingent,  it  was 
not  fixed  and  determined,  and  no  debt  actually  existed 
on  the  part  of  Albert  E.  Sullard.  If  no  lien  upon  the 
land  was  created  by  the  mere  execution  of  the  bond, 
and  if  no  debt  existed  at  the  death  of  Albert  E.  Sullard, 
then  all  the  liability  of  George  F.  Sullard  was  his 
obligation  as  heir  holding  the  estate  to  perform  as 
surety  upon  the  bond  if  called  upon  to  do  so. 

Section  101  of  the  Decedent  Estate  Law  does  not 
create  an  absolute  liability  against  the  heirs,  but 
merely  provides  a  method  for  enforcing  an  existing 
liability  of  the  decedent  against  his  assets  which  have 
come  into  the  hands  of  his  heirs.  Hill  v.  Moore,  131 
App.  Div.  365. 

The  liability  under  this  provision  extends  only  to 
the  real  property  acquired  by  descent  or  devise  at  the 
time  of  the  decease,  and  does  not  reach  that  which 
may  be  made  out  of  it  by  the  skill,  management  or 
labor  of  the  heir  or  devisee.  Clift  v.  Moses,  116  N.  Y. 
144, 158. 

An  action  under  section  101  of  the  Decedent  Estate 
Law  is  not  an  action  to  enforce,  but  an  action  to 
acquire  a  lien  upon  real  property,  and  to  authorize  its 
sale  for  the  purpose  of  satisfying  a  debt.  Rogers  v. 
Patterson,  79  Hun,  483;  Covell  v.  Weston,  20  Johns. 


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Mattbe  op  Sullabd,  297 

Misc.]     Surrogate's  Court,  Delaware  County,  January,  1921. 

414;  Hauselt  v.  Patterson,  124  N.  T.  349;  Mortimer  v. 
Chambers,  63  Hun,  335. 

It  is  an  action  in  equity  having  the  nature  of  a 
proceeding  in  rem  in  such  sense  that  when  the  land 
has  not  been  aliened  by  the  heir,  the  judgment  must 
direct  that  the  debt  of  the  plaintiff  be  collected  out  of 
the  real  property.      Hauselt  v.  Patterson,  supra. 

"  The  basis  of  the  action  is  the  debt  which  the 
deceased  owed  the  plaintiff ;  but  that  is  not  the  gist  of 
it.  It  is  not  an  action  for  the  recovery  of  money  only, 
although  the  ultimate  object  of  it  is  to  obtain  money; 
•  *  •  but  it  is  an  equitable  action  to  reach  certain 
real  estate,  which  the  deceased  devised  to  the  defend- 
ants and  to  authorize  its  sale  for  the  purpose  of  satis- 
fying a  debt  that  the  deceased  owed  the  plaintiff.  It 
is  strictly  an  action  in  rem.^^  Wood  v.  Wood,  26  Barb. 
356. 

The  general  rule  is  well  settled  that  sureties  are 
not  liable  until  there  is  a  default  of  their  principal, 
and  such  default  has  been  established.  It  has  been 
repeatedly  held  that  no  action  can  be  maintained 
against  such  sureties  until  an  accounting  has  been  had, 
or  until  their  principal  or  personal  representative  has 
disobeyed  some  valid  order  or  decree  of  the  court  hav- 
ing jurisdiction.  Hood  v.  Hood,  85  N.  Y.  561 ;  Rouse 
v.  Payne,  120  App.  Div.  667;  Haight  v.  Brisbin.  100 
N.  Y.  219;  Perkins  v.  Stimmel,  114  id,  359;  French 
V.  Dauchy,  134  id.  543. 

In  the  administration  of  this  estate  it  has  been  deter- 
mined that  the  absentee  as  trustee  under  the  will  of 
Anna  D.  Lockwood  is  indebted  to  the  trust  estate  in 
a  certain  sum.  The  substituted  trustee  has  presented 
a  claim  and  the  claim  has  been  compromised  and 
adjusted  and  the  amount  determined  to  be  due  the 
substituted  trustee  representing  the  trust  estate  has 
been  fixed.    The  estate  of  the  absentee  is  liable  to  the 


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298  Matter  of  Sullard. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

Bubstituted  trustee  as  a  creditor  the  same  as  it  is 
liable  to  other  creditors.  The  substituted  trustee  now 
seeks  under  this  state  of  facts  to  procure  a  decree 
directing  the  proceeds  of  the  sale  of  the  property 
which  came  to  the  absentee  from  his  father,  the  surety, 
shall  be  paid  to  him  in  satisfaction  of  such  debt  in 
preference,  and  prior  to  the  claims,  of  all  other  cred- 
itors. 

As  before  stated  no  case  directly  in  point  has  come 
to  the  attention  of  the  court,  although  it  has  been  held 
that  a  creditor  holding  a  specialty  debt  due  from  an 
intestate  and  coming  against  the  estate  of  his  adminis- 
trator on  account  of  a  devastavit  can  only  take  equally 
with  such  administrator's  simple  contract  creditors. 
Carow  V.  Mowatt,  2  Edw.  Ch.  56. 

The  claim  of  the  substituted  trustee  cannot  be 
allowed.  The  property  owned  by  the  absentee  and 
which  was  sold  in  this  proceeding  for  the  payment 
of  his  debts  must  be  applied  pro  rata  in  satisfaction 
of  all  of  his  obligations. 

The  estate  of  the  absentee  is  liable  as  principal  to 
account  for  the  trust  funds  in  his  possession,  but  the 
remedy  as  to  the  sureties,  if  the  funds  coming  into 
the  hands  of  the  temporary  administratrix  are  insuf- 
ficient to  pay  all  of  the  debts,  including  such  fund,  is 
not  in  this  proceeding. 

A  decree  may  be  prepared  in  conformity  with  this 
opinion.  The  question  of  allowances  will  be  held 
open  until  such  time  as  the  decree  is  noticed  for  settle- 
ment. 

Decreed  accordingly. 


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Matter  of  Fredenburg.  299 

Misc.]      Surrogate's  Court,  Delaware  County,  January,  1921. 


Matter  of  the  Judicial  Settlement  of  the  Account  of 
Arthur  S.  Reynolds,  as  Executor  of  Etta  Freden- 
burg BuRCHAM,  as  Executrix  of  David  Fredenburg, 
Deceased. 

(Surrogate's  Court,  Delaware  County,  January,  1921.) 

Wills  — coxurtruction  of  — intention  of  testator  — life  estates  — 
gifts — power  of  sale  —  sale  of  real  estate  —  executors  and 
administrators. 

Where  an  estate  is  given  in  one  part  of  a  will  in  clear  and 

decisive  terms,  it  cannot  be  taken  away  or  cut  down  by  raising 

a  doubt  as  to  the  meaning  or  application  of  a  subsequent  clause, 

nor  by  any  subsequent  words  which  are  not  as  clear  and  decisive 

as  the  words  granting  the  estate.      (P.  304.) 

The  intention  of  the  testator  as  clearly  shown  by  a  certain 
paragraph  of  his  will,  which  was  drawn  by  an  inexperienced 
layman,  was  to  give  to  his  wife  all  his  estate,  real  and  per- 
sonal, subject  to  two  conditions:  1.  That  she  should  provide 
a  suitable  home  for  his  children,  maintain  them  and  give  them 
an  education.  2.  That  when  they  respectively  arrived  at  the 
age  of  twenty-one  years,  she  should  pay  each  of  them  $500, 
except  that  she  should  pay  to  or  for  the  benefit  of  one  son,  the 
sum  of  $700.  Held,  that  as  to  give  effect  to  a  succeeding  pro- 
vision, that  in  the  event  of  the  death  of  the  mother  before  any 
of  the  children  attained  their  majority,  testator's  property 
should  be  sold  and  divided  and  go  to  his  four  children  share  and 
share  alike,  would  of  necessity  convert  the  estate  of  the  wife 
from  a  fee  into  a  conditional  life  estate  until  at  least  one  of 
the  chOdren  became  of  age,  such  provision  should  be  con- 
strued as  precatory,  and  so  construed  was  consistent  with  the 
absolute  gift  to  the  wife.     (P.  305.) 

A  still  later  provision,  that  in  the  event  of  the  death  of  the 
wife  after  either  of  the  children  arrived  at  the  age  of  twenty- 
one  years  and  they  had  received  the  sums  mentioned,  then  the 
estate  should  be  sold  and  the  proceeds  given  to  the  children  in 
equal  shares  with  deduction  of  sums  already  paid  to  them,  is  so 
indefinite  and  ambiguous  that  it  cannot  be  given  effect  to  out 
down  the  gift  to  the  wife.     (P.  306.) 


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300  Matter  op  Fredbnburq. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

A  provision  vesting  in  testator's  wife  full  power  to  seQ  and 
convey  any  portion  of  the  estate  with  the  consent  and  approval 
of  one  son  and  the  daughter,  the  proceeds  of  such  sale  to  be 
applied  to  any  debt  that  might  be  a  claim  against  the  estatOi 
was  not  necessarily  to  be  construed  as  indicating  any  intention 
of  testator  to  give  Ms  wife  only  a  life  estate.     (Pp.  306,  307.) 

The  absolute  gift  to  the  wife  was  not  rendered  void  because 
of  her  failure  to  pay  the  sums  as  conditioned  by  the  gift  to 
her,  because  the  children  could  enforce  the  payment  of  the 
amount  due  or  to  which  they  were  entitled  under  the  provision 
of  gifts  to  the  wife,  against  her  estate.    (P.  308.) 

Judicial  settlement  of  account  by  executor  of 
deceased  executrix,  in  which  proceeding  judicial  con- 
struction of  the  will  of  David  Fredenburg  is  involved. 

The  last  will  and  testament  of  David  Fredenburg, 
a  resident  of  the  town  of  Roxbury,  Delaware  county, 
was  admitted  to  probate  January  3,  1903,  and  letters 
testamentary  issued  to  Etta  Fredenburg,  the  wife  of 
the  testator,  the  executrix  named  in  said  will. 

The  testator  at  the  time  of  his  death  was  the  owner 
of  a  farm  of  land  with  personal  property  thereon  sit- 
uate in  the  town  of  Roxbxiry.  The  testator  was  sur- 
vived by  his  wife  and  four  infant  children,  one  daugh- 
ter and  three  sons.  The  executrix  took  possession  of 
the  real  and  personal  property,  conducted  and  oper- 
ated the  farm  and  transacted  all  business  thereafter 
as  her  own  and  in  her  own  name.  The  executrix  sub- 
sequently remarried.  No  inventory  was  made  or  filed 
and  no  account  was  rendered  by  the  executrix  in 
her  lifetime. 

The  eldest  son,  Harry,  became  twenty-one  years  of 
age  in  the  year  1907  and  died  in  the  year  1908  sur- 
vived by  his  mother,  one  sister  and  two  brothers.  The 
daughter,  Carrie,  became  twenty-one  years  of  age  in 
the  year  1909,  was  married  in  1910  and  died  Septem- 
ber, 1919,  survived  by  her  husband  and  one  son,  Frank 
Peckham.    The  son  Charles  became  twenty-pne  yew* 


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Mattes  of  Pbbdbnburq.  301 

Misc.]      Surrogate's  Court,  Delaware  County,  January,  1921. 

of  age  in  the  year  1911  and  the  son  George  in  the  year 
1918,  both  of  whom  are  living,  and  together  with  the 
infant  survivor  of  the  deceased  daughter  are  parties 
to  this  proceeding. 

During  the  time  the  widow  and  executrix  was  in 
occupation  and  operating  the  farm  left  by  the  testa- 
tor, she  improved  the  property,  paid  the  debts  of  the 
testator  and  erected  a  new  bam  upon  the  farm  at  an 
expense  of  approximately  $2,300. 

The  will  of  the  testator  which  must  be  construed 
in  this  proceeding,  after  directing  the  payment  of 
debts  and  funeral  expenses,  provided  as  follows: 

''  Second.  I  give  and  bequeath  to  my  beloved  wife 
Etta  Fredenburg  all  of  my  real  estate  and  personal 
property  of  every  kind  and  description  of  which  I 
shall  die  possessed  provided 

*'  First.  That  she  shall  provide  a  suitable  home  for 
my  children  clothe  and  feed  them  care  for  them  in 
sickness  and  in  health  and  give  them  an  education. 

''  Second.  That  when  my  son  Harry  Fredenburg 
shall  arrive  at  the  age  of  21  years  she  shall  pay  to  him 
the  sum  of  five  Hundred  dollars.  When  my  daughter 
Carrie  Fredenburg  shall  arrive  at  the  age  of  21  years 
she  shall  pay  to  her  the  sum  of  five  hundred  dollars. 
That  when  my  son  Charles  Fredenburg  shall  arrive 
at  the  age  of  21  years  she  shall  pay  to  him,  or  deposit 
with  some  suitable  trust  Company  or  Savings  institu- 
tion for  his  benefit  the  sum  of  Seven  hundred  dollars. 
When  my  son  George  Fredenburg  shall  arrive  at  the 
age  of  21  years  she  shall  pay  to  him  the  sum  of  five 
hundred  dollars. 

^'Second.  In  the  event  of  the  death  of  my  wife 
before  any  of  my  children  arrive  at  the  age  of  21 
years  it  is  my  will  that  all  of  the  property  of  which  I 
shall  die  possessed  shall  be  sold  and  the  proceeds  of 
such  sale  shall  be  divided  in  to  four  equal  share  which 


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302  Matter  of  Fredenburg. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.114. 

shall  be  given  to  my  children  Harry,  Carrie,  Charles 
and  George  share  and  share  alike. 

"  Third.  In  the  event  of  the  death  of  my  wife  after 
either  of  my  children  have  arrived  at  the  age  of  21 
years  and  they  have  received  the  sums  hereinbefore 
mentioned  then  my  estate  shall  be  sold  and  the  pro- 
ceeds of  such  sale  shall  be  divided  in  to  four  equal 
shares  and  given  to  my  children  Harry,  Carrie, 
Charles  and  George  share  and  share  alike  except  that 
the  sums  already  paid  to  them  when  they  had  arrived 
at  the  age  of  21  years  shall  be  deducted  from  their 
share. 

''  Fourth.  I  will  and  ordain  that  my  beloved  wife 
Etta  Fredenburg  with  the  consent  and  approval  of 
my  son  Harry  Fredenburg  and  my  daughter  Carrie 
Fredenburg,  shall  have  full  power  and  authority  to 
sell  or  convey  any  portion  of  my  estate  to  any  person 
or  persons  and  their  heirs  forever,  the  proceeds  of 
such  sale  to  be  applied  to  any  debts  that  may  be  a 
claim  upon  my  estate." 

No  question  is  raised  as  to  the  account  filed  by  the 
executor  of  the  deceased  executrix.  The  principal 
question  for  determination  is  whether  under  the  terms 
of  the  will  of  the  testator,  the  property  passed  to  the 
widow,  or  because  of  the  peculiar  provisions  of  the 
will,  is  now  vested  in  the  surviving  sons  and  the  infant 
descendant  of  the  daughter  Carrie. 

Ives  &  Craft,  for  Arthur  S.  Reynolds,  executor,  etc. 

Leonard  A.  Govern,  special  guardian  for  Harry 
Peckham,  an  infant. 

George  Fredenburg,  individually  and  as  adminis- 
trator with  the  will  annexed  of  David  Fredenburg, 
deceased,  in  person. 


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Matter  of  Fredenburg.  303 

Misc.]      Surrograte's  Court,  Delaware  County,  January,  1921. 

McNaught,  S.  The  difficulties  incident  to  con- 
struing the  will  here  involved  furnish  a  forcible  illus- 
tration of  the  inadvisability  of  having  a  testamentary- 
disposition  of  property  drawn  by  an  inexperienced 
layman.  It  is  a  fundamental  principle  of  the  law  relat- 
ing to  the  construction  of  wills  that  the  intention  of 
the  testator  must  govern  and  must  be  given  full  force 
and  effect  if  such  intention  can  be  drawn  from  the 
instrument  propounded.  It  is  a  platitude  that  **  no 
will  has  a  brother.^'  The  diversity  in  wills  is  as  great 
as  the  difference  in  individuals.  In  most  instances  the 
citation  of  numerous  authorities  are  seldom  of  great 
value  or  assistance  except  as  they  treat  of  similar 
cases,  or  bear  upon  the  general  rules  of  construction. 

By  the  2d  paragraph  of  the  will  bt  the  testator  it 
is  manifest,  standing  alone,  there  would  be  but  one 
possible  construction  to  be  given  to  it,  and  that  is  that 
by  its  terms  Jit  was  the  intention  of  the  testator  to  give 
to  his  wife  all  of  his  real  estate  and  personal  property 
subject  to  two  conditions :  First,  that  she  should  pro- 
vide a  suitable  home  for  his  children,  maintain  them 
and  give  them  an  education.  Second,  that  when  they 
respectively  arrived  at  the  age  of  twenty-one  years, 
she  should  pay  each  one  of  them  $500  excepting  she 
should  pay  to  or  for  the  benefit  of  the  son  Charles  the 
sum  of  $700. 

The  language  of  the  2d  paragraph  of  the  will  and 
the  conditions  numbered  **  first  '*  and  **  second  '^  in 
said  paragraph  are  plain,  unequivocal  and  free  from 
ambiguity.  The  difficulty  arises  when  an  attempt  is 
made  to  reconcile  the  provisions  of  the  3d  and  4th 
paragraphs  with  the  absolute  gift  of  the  2d  pargraph. 

By  the  two  subsequent  paragraphs  it  is  provided, 
first,  that  in  the  event  of  the  death  of  the  wife  before 
any  of  the  children  arrived  at  twenty-one  years  of  age, 
the  property  of  the  testator  should  be  sold  and  divided 


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304  Matter  of  Frbdbnburq. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.114. 

into  four  equal  shares  and  go  to  the  four  children 
share  and  share  alike.  By  the  next  paragraph  it  ifi 
apparently  provided  that  in  the  event  of  the  death  of 
the  wife  after  any  of  the  children  arrived  at  the  age 
of  twenty-one  years  and  they  had  received  the  sums 
mentioned,  then  the  estate  should  be  sold  and  the  pro- 
ceeds divided  into  f^ur  equal  shares  and  given  to  the 
children  except  that  the  sums  already  i)aid  them 
should  be  deducted  from  their  share. 

Where  an  estate  is  given  in  one  part  of  a  will  in 
clear  and  decisive  terms  it  cannot  be  taken  away  or 
cut  down  by  raising  a  doubt  as  to  the  meaning  or  appli- 
cation of  a  subsequent  clause,  nor  by  any  subsequent 
words  which  are  not  as  clear  and  decisive  as  the  words 
granting  the  estate.  Roseboom  v.  Rosehoom,  81  N.  Y. 
359;  Clarke  v.  Leitpp,  88  id.  228;  Campbell  v.  Beau- 
mont, 91  id.  464;  Matter  of  Gardner,  140  id.  122;  Clay 
v.  Wood,  153  id.  134;  Ooodwvn  v.  Coddington,  154  id. 
283,  286;  Banzer  v.  Banzer,  156  id.  429;  Adams  v. 
Massey,  184  id.  62;  Sands  v.  Waldo,  100  Misc.  Rep. 
288,  293,  294. 

^'  The  rule  that  where  clauses  in  a  will  are  antag- 
onistic the  latter  must  stand  as  the  last  expression  of 
intention  is  never  applied  unless  the  last  clause  is  as 
clear  as  the  first  and  cannot  be  reconciled  therewith. 
It  is  only  when  the  later  provision  is  as  plain  and 
decisive  as  the  earlier  and  the  general  intention  of  the 
testator  cannot  be  gathered  from  the  general  scope 
of  the  will  or  otherwise,  and  when  the  two  provisions 
are  wholly  irreconcilable,  and  cannot  possibly  stand 
together,  that  as  a  desperate  remedy,  resort  is  had  to 
the  last  clause  as  expressing  the  latest  intent  in  order 
to  save  one  instead  of  sacrificing  both.*'  Adams  v. 
Massey,  supra,  and  cases  cited. 

The  gift  to  the  wife  as  contained  in  the  2d  para- 
graph, being  dear  and  unmistakable  in  its  terms,  we 


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Matter  or  Fredbnburg.  305 

Mise.]      Surrogate's  Court,  Delaware  County,  January,  1921. 

are  called  upon  to  determine  the  effect  of  the  two  sub- 
sequent paragraphs.  The  first  of  these  provides :  **  In 
the  event  of  the  death  of  my  wife  before  any  of  my 
children  arrive  at  the  age  of  21  years,  it  is  my  will  that 
all  of  the  property  of  which  I  shall  die  possessed  shall 
be  sold,  and  the  proceeds  of  such  sale  shall  be  divided 
into  four  equal  shares  which  shall  be  given  to  my 
children,  Harry,  Carrie,  Charles  and  George  share 
and  share  alike/' 

To  give  effect  to  the  language  of  this  paragraph 
would  of  necessity  convert  the  estate  of  the  wife  from 
a  fee  into  a  conditional  life  estate  until  at  least  one 
of  the  children  of  the  testator  arrived  at  the  age  of 
twenty-one  years. 

It  seems  to  the  court  the  language  of  this  clause 
must  be  construed  as  the  expression  of  a  desire;  that 
the  words  used  are  properly  construed  as  precatory, 
and  80  construed  are  consistent  with  the  absolute  gift 
in  the  preceding  paragraph  to  the  wife.  The  word 
**  will  **  in  the  clause  in  question  may  properly  be 
regarded  as  the  expression  of  a  desire. 

There  are  many  authorities  in  which  similar  pro- 
visions, although  not  expressed  in  the  s-ame  language 
and  qualified  by  precatory  words,  have  been  held  abso- 
lute. In  many  of  the  cases  the  question  has  arisen 
upon  wills  more  antagonistic  in  their  expression  to  an 
absolute  devise  than  is  the  instrument  under  consid- 
eration. Foose  V.  WUtmoref  82  N.  T.  405 ;  Lawrence 
V.  Cooke,  104  id.  632;  Matter  of  Gardner,  140  id.  122; 
Clay  V.  Wood,  153  id.  134;  Post  v.  Moore,  181  id.  15. 

The  succeeding  clause  reads  as  follows:  **  In  the 
event  of  the  death  of  my  wife  after  either  of  my  chil- 
dren have  arrived  at  the  age  of  21  years,  and  have 
received  the  sums  hereinbefore  mentioned,  then  my 
estate  shall  be  sold  and  the  proceeds  of  such  sale  shall 
be  divided  into  four  equal  shares  and  given  to  my  ehil- 
20 


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306  Matter  of  Fredenburg. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

dren  Harry,  Carrie,  Charles  and  George  share  and 
share  ahke,  except  that  the  sums  already  paid  to  them, 
when  they  had  arrived  at  the  age  of  21  years  shall  be 
deducted  from  their  share." 

It  seems  impossible  to  reconcile  the  provisions  of 
this  paragraph  with  the  preceding  paragraphs  of  the 
will.  The  language  is  not  clear  and  definite.  The 
meaning  and  the  intention  of  the  testator  can  hardly 
be  ascertained  from  the  language  used.  If  literally 
followed,  it  would  seem  that  compliance  with  the  pro- 
vision, in  the  event  of  the  death  of  the  wife  after  any 
of  the  children  arrived  at  the  age  of  twenty-one  years, 
would  result  in  partial  intestacy.  This  certainly 
would  be  the  result  in  the  event  of  the  death  of  the  wife 
after  all  of  the  children  arrived  at  the  age  of  twenty- 
one  years  as  is  the  situation  here,  for  the  reason 
the  testator  directs  that  his  estate  shall  be  sold  and 
the  proceeds  of  the  sale  equally  divided  between  his 
four  children,  with  no  provision  that  the  heirs  of  such 
children  should  share ;  and  then  further  provides  that 
the  sums  which  may  have  already  been  paid  to  them 
when  they  arrived  at  the  age  of  twenty-one  years, 
under  the  conditions  of  the  second  proviso  in  the 
2d  paragraph  of  the  will,  shall  be  deducted  from 
their  share,  but  makes  no  provision  whatever  as  to 
the  disposition  to  be  made  of  the  sums  so  deducted, 
and  as  to  such  sums,  intestacy  would  result. 

The  clause  is  so  indefinite  and  ambiguous  it  cannot 
be  given  effect  to  cut  down  the  gift  to  the  wife,  for 
the  intention  to  cut  down  the  ^ft  to  the  wife  is  not 
expressed  in  the  clear  and  unequivocal  language 
required  under  the  authorities  cited,  supra. 

Considerable  stress  is  laid  upon  the  language  of  the 
succeeding  paragraph  of  the  will  in  which  the  testator 
vests  his  wife  with  full  power  and  authority  to  sell 
and  convey  any  portion  of  his  estate  with  the  con- 


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Matter  of  Fredenbtirg.  307 


Misc.]      Surrogate's  Court,  Delaware  County,  January,  1921. 

sent  and  approval  of  his  son  Harry  Fredenburg 
and  his  daughter  Carrie  Fredenburg,  the  proceeds  of 
the  sale  to  be  applied  to  any  debts  that  might  be  a 
claim  upon  his  estate. 

It  is  contended  this  provision  indicates  the  tes- 
tator did  not  contemplate  vesting  title  in  his  wife  but 
only  to  give  her  a  life  estate.  The  provision  is  not 
necessarily  to  be  construed  in  such  manner.  It  seems 
rather  that  the  testator,  desiring  the  home  maintained 
and  having  given  all  of  the  property  to  the  wife, 
coupled  with  the  condition  that  she  should  maintain 
the  home,  added  a  further  condition  by  this  clause  of 
the  will  by  which  he  provided  a  way,  if  necessity 
required,  by  which  some  of  the  property  should  be  sold 
for  the  payment  of  his  debts  and  required  as  a  condi- 
tion that  the  eldest  son  and  the  daughter  should  con- 
sent and  approve  of  the  sale. 

It  seems  to  the  court  that  the  construction  of  the 
instrument  in  question  already  outlined  is  the  only 
possible  construction  to  be  given  under  the  authori- 
ties and  as  a  matter  of  justice.  It  is  of  course  true 
the  **  pole  star"  in  the  construction  of  wills  is  to 
effectuate  the  intention  of  the  testator,  but  it  is  incon- 
ceivable to  the  court  that  the  testator  in  this  case  own- 
ing an  ordinary  farm  with  a  small  dairy,  ever  intended 
to  vest  in  his  wife  a  life  estate  only,  impose  upon  her 
the  burden  of  providing  a  suitable  home  for  his  chil- 
dren, clothing,  maintaining  them  in  sickness  and  in 
health  and  giving  them  an  education,  and  then  from 
the  income  of  such  property  should  pay  to  each  one 
as  they  arrived  at  the  age  of  twenty-one  years,  the 
sum  of  $500,  and  to  one  the  sum  of  $700  and  at  her 
death  the  property  should  all  belong  to  the  children. 
No  question  is  raised  but  that  the  wife  provided  a 
Iiome  and  cared  for  the  children,  but  it  appears  the 
condition  relative  to  the  payments  provided  for  in  the 


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308  Matter  of  PBEDENBUita. 

Surrogate's  Court,  Delaware  County,  January,  1921.     [Vol.  114. 

2d  paragraph  of  the  will  were  not  fully  complied  with 
by  the  wife. 

It  appears  the  son  Harry  died  a  short  time  after 
arriving  at  the  age  of  twenty-one  years  without  having 
received  his  $500.  The  daughter  married  after  arriv- 
ing at  the  age  of  twenty-one  years,  and  subsequently 
died  without  receiving  her  $500.  The  son  Charles  is 
still  living  but  has  not  received  the  sum  of  $700  as  pro- 
vided in  the  will.  The  son  George  Fredenburg  it  is 
conceded  received  $400  of  his  $500  after  arriving  at 
the  age  of  twenty-one  years. 

The  failure  to  pay  the  sums  as  provided  in  the 
second  condition  of  the  2d  paragraph  of  the  will  did 
not  render  void  the  gift  to  the  wife.  The  sons  and 
the  daughter  could  enforce  the  payment  of  the  amount 
due  or  to  which  they  were  entitled  under  such  provision 
and  may  enforce  the  payment  against  the  estate  of 
the  deceased  wife. 

It  is,  therefore,  the  conclusion  of  the  court  that 
under  the  will  in  question  Etta  Fredenburg  took  abso- 
lute title  to  the  real  and  personal  property  of  David 
Fredenburg,  subject  to  the  payment  of  his  debts  and 
the  performance  of  the  conditions  in  the  2d  para- 
graph, and  that  such  absolute  estate  was  not  divested, 
limited  or  cut  down  by  the  subsequent  provisions  in 
the  succeeding  paragraphs  of  the  will. 

A  decree  may  be  prepared  in  conformity  with  the 
views  above  expressed  and  noticed  for  settlement. 

Decreed  accordingly. 


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Matter  of  Dutf.  309 

Misc.]     Surrogate's  Court,  New  York  County,  January,  1921. 

Matter  of  the  Estate  of  Michabl  Dupp,  Deceased. 

(Surrogate's  Court,  New  York  County,  January,  1921.) 

Transfer  tax— wliat  subject  to  — estates  in  es^ectancy  — willa--^ 
motions  and  orders  — life  estates  — invalid  exercise  of  power 
of  appointment. 

The  will  of  a  decedent,  who  died  in  1904,  directed  the  division 
of  his  residuary  estate  into  two  parts,  the  income  from  one  to 
be  paid  to  his  son  for  life,  and  on  his  death  the  share  to  pass 
to  his  issue.  In  case  no  children  survived  the  son,  then  the  in- 
oome  was  to  be  paid  to  decedent's  daughter  during  her  life, 
and  upon  her  death  the  share  to  pass  to  her  issue,  and  if  no 
issue,  then  to  whomsoever  she  should  appoint  by  her  wiU. 
Alternative  provision  was  also  made  in  respect  to  the  other 
half,  the  income  from  which  was  to  be  paid  to  the  daughter. 
She  died  without  issue  in  1913,  leaving  her  residuary  estate  to 
her  brother  who  died  testate  in  1918.  In  an  action  by  the 
executors  of  the  son  for  the  settlement  of  his  account  as  trus- 
tee under  the  will  of  his  father,  it  was  held  that  the  attempted 
exercise  by  the  son,  in  his  will,  of  the  power  of  appointment 
given  to  him  under  his  father's  will,  was  invalid,  and  that 
there  was  a  reversion  in  the  estate  of  the  father  which  passed 
as  if  he  died  intestate,  because  no  provision  was  made  for  the 
disposition  of  the  remainders  in  case  of  the  failure  of  the  exer- 
cise of  the  power  of  appointment.  It  was  also  held  that  the 
powers  were  contingent  because  they  might  be  defeated  if 
either  of  the  children  of  the  father  died  leaving  issue.  In  the 
transfer  tax  proceedings  in  the  estate  of  the  father  the  ap- 
praiser found  the  value  of  the  life  estates  of  the  son  and 
daughter,  but  suspended  taxation  on  the  remainders  because 
of  the  powers  of  appointment  thereover,  and  the  order  entered 
on  the  appraiser's  report  contained  no  reference  to  the  re- 
mainders. Held,  that  a  contention  of  the  executors  of  the 
father's  estate  that  the  latter  part  of  section  220(5)  of  the 
Tax  Law  (Laws  of  1897,  chap.  284)  providing  for  the  taxation 
of  the  non-exercise  of  the  power  in  the  donee's  estate,  which 
was  in  effect  when  the  father  died  but  repealed  by  chapter  732 
of  the  Laws  of  1911,  which  was  in  effect  prior  to  the  death  of 
the  son,  exempted  the  non-exercise  of  {he  power  from  taxation, 
fiovld  not  be  sustained,  f^^  since  no  transfer  took  place  in  the 


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310  Matter  of  Duff. 


Surrogate's  Court,  New  York  County,  January,  1921.     [Vol.  114. 

donee's  estate  the  l^slature  was  without  power  to  tax  the 
property  in  his  estate,  the  transfer  tax  must  be  paid  on  the 
only  transfer  effected,  which  was  in  the  donor's  estate;  hence 
the  taxation  of  the  estates  in  expectancy  was  held  in  abeyance, 
and  they  may  be  presently  taxed  against  the  persons  in  whom 
they  vested  in  possession  and  enjoyment  on  their  full,  un- 
diminished value. 

An  application  to  vacate  an  order  appointing  a  transfer  tax 
appraiser  on  the  ground  that  the  estate  of  the  decedent  herein 
was  not  subject  to  further  transfer  tax,  treated  as  a  motion  to 
fix  the  tax  without  the  appointment  of  an  appraiser,  and  the 
order  entered  will  provide  for  vacating  the  order  heretofore 
made  appointing  the  appraiser. 

Application  to  vacate  an  order  appointing  an 
appraiser. 

Millard  F.  Johnson,  for  estate. 

William  W.  Wingate,  for  State  Comptroller. 

Foley,  S.  This  is  an  application  to  vacate  an  order 
appointing  an  appraiser  on  the  ground  that  the  estate 
of  the  decedent  is  not  subject  to  further  transfer  tax. 

Decedent  died  October  28,  1904.  By  his  wiU  he 
directed  that  his  residuary  estate  be  divided  into  two 
parts,  the  income  from  one  of  which  was  to  be  paid 
to  his  son  John  for  life,  and  on  his  death  the  share 
to  pass  to  John^s  issue.  In  case  no  children  survived 
the  son,  then  the  income  was  to  be  paid  to  decedent's 
daughter,  Mary,  during  her  life,  and  upon  her  death 
the  share  to  pass  to  her  issue,  and  if  no  issue,  then  to 
whomsoever  she  bhould  api)oint  by  her  will.  Alter- 
native provision  was  also  made  in  respect  to  the  other 
half,  the  income  from  which  was  to  be  paid  to 
decedent's  daughter.  The  daughter,  Mary  Carey,  died 
without  issue  in  1913,  leaving  her  residuary  estate  to 
her  brother,  John,  who  thereafter,  and  in  the  year 
1918,  died  testate. 

In  an  action  in  the  Supreme  Court  by  the  execu- 


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Matter  op  Dufp.  31 1 

Misc.]     Snrrogate's  Court,  New  York  County,  January,  1921. 

tors  of  John  for  the  settlement  of  his  account  as 
trustee  under  the  will  of  his  father,  Michael  Duff,  it 
was  held  that  the  attempted  exercise  by  the  son  in  his 
will  of  the  power  of  appointment  given  to  him  under 
his  father's  will  was  invalid,  and  that  there  was  a 
reversion  in  the  estate  of  the  father  which  passed  as 
if  he  died  intestate,  because  no  provision  was  made 
for  the  disposition  of  the  remainders  in  case  of  the 
failure  of  the  exercise  of  the  power  of  appointment. 
Duff  V.  Rodenkirchen,  110  Misc.  Rep.  575;  affd.,  on 
opinion  below,  193  App.  Div  898.  The  powers  were 
held  contingent  because  they  might  be  defeated  if 
either  of  the  children  of  decedent  died  leaving  issue. 

In  the  transfer  tax  proceedings  in  the  estate  of 
Michael  Duff  the  appraiser  found  the  value  of  the  life 
estates  of  John  J.  Duff  and  Mary  Carey,  but  sus- 
pended taxation  on  the  remainders  because  of  the 
powers  of  appointment  thereover.  The  order  entered 
on  the  report  contained  no  reference  to  the  remainders, 
and  was  not  a  binding  adjudication  as  to  their  liability 
for  present  or  future  taxation.  Matter  of  Naylor, 
189  N.  Y.  556,  affg.  120  App.  Div.  738;  Matter  of 
Goldenherg,  187  id.  692.  The  facts  in  Matter  of 
Naylor,  supra,  were  very  much  like  the  facts  here.  In 
the  opinion  of  the  Appellate  Division,  first  depart- 
ment, it  is  pointed  out  that  the  suspension  of  the  tax 
on  the  remainders  was  not  a  binding  adjudication.  In 
that  case  also  the  court  held  that  the  remainders 
should  be  taxed  at  their  full  and  undiminished  value, 
notwithstanding  that  the  report  of  the  appraiser  taxed 
the  life  estates  and  only  indicated  the  balance  remain- 
ing after  the  deduction  of  the  life  estates. 

The  executors  also  contend  that  the  remainders  are 
in  no  way  taxable  because  of  the  varying  statutory 
provisions  existing  at  the  date  of  the  death  of  testator 
and  at  the  date  of  death  of  donee  —  John  Duff.    They 


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312  Matter  of  Dufp, 


Surrogate's  Court,  N«w  York  County,  January,  1921.     [Vol.  114. 

contend  that  the  latter  part  of  section  220,  subdivision 
5,  of  the  Tax  Law  (Laws  of  1897,  chap.  284),  provid- 
ing for  the  taxation  of  the  non-exercise  of  the  power 
only  in  the  donee's  estate,  was  in  effect  in  1904  when 
Michael  Duff  died,  and  that  this  provision  of  the 
statute  was  repealed  by  chapter  732  of  the  Laws  of 
1911,  in  effect  July  21,  1911,  prior  to  the  death  of 
John  Duff  in  1918.  They  contend  that  the  repeal 
exempted  the  non-exercise  of  the  power.  This  conten-| 
tion  cannot  be  sustained.  The  Court  of  Appeals  in 
Matter  of  Lansing,  182  N.  Y.  238,  247,  held  that  this 
provision  was  unconstitutional.  The  court  said  where 
there  is  no  transfer  **  there  is  no  tax  •  •  •  the 
act  relating  to  taxable  transfers  •  •  •  imposes  no 
direct  tax  and  is  unconstitutional  since  it  *  *  * 
impairs  the  obligation  of  contracts,  and  takes  private 
property  for  public  use  without  compensation  "  I 
hold,  therefore,  that  this  provision  was  at  no  time 
valid  or  enforcible.  That  decision  must  be  construed 
as  declaring  not  taxable  the  non-exercise  of  the  power 
by  the  donee,  whether  the  will  of  a  donor  was  executed 
prior  or  subsequent  to  the  enactment  of  that  provision. 
Since  no  transfer  took  place  in  the  donee's  estate  the 
legislature  was  without  jurisdiction  to  tax  the  prop- 
erty in  his  estate.  The  tax  must  therefore  be  paid  on 
the  only  transfer  effected,  which  was  in  the  donor's 
estate.  Hence  the  taxation  of  the  estates  in  expectancy 
was  held  in  abeyance,  and  they  may  now  be  taxed 
against  the  persons  in  whom  they  vested  in  possession 
and  enjoyment  on  their  full,  undiminished  value.  Tax 
Law,  §  230;  Matter  of  Ooldenberg,  supra. 

This  application  may  be  treated  as  a  motion  to  fix 
tax  without  the  appointment  of  an  appraiser,  and  the 
order  to  be  entered  should  provide  for  vacating  the 
order  heretofore  made  appointing  the  appraiser. 

Decreed  accordingly. 


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Matter  of  Mbtzger.  313 

Misc.]     Surrogate's  Court,  Nefw  York  County,  January,  1921. 

Matter  of  Adoption  of  Justine  B.  Metzger,  an  Infant, 
(SazTogate'8  Court,  New  York  County,  January,  1921.) 

Adoption  —  when  application  by  second  husband  of  mother  for 
adoption  of  her  child  will  not  be  granted  against  the  oppo- 
sition of  the  father — diyorce  —  husband  and  wife  —  Domestic 
Relations  Law,  §  111(3). 

The  statute  (Domestic  Relations  Law,  §  111(3))  still  provides 
that  the  consent  of  a  parent  who  has  been  divorced  because  of 
his  or  her  cruelty  or  adultery  is  unnecessary  in  adoption  pro- 
ceedings. 

But  where  in  a  wife's  action  for  a  divorce  she  was  awarded 
the  custody  of  her  six-year-old  daughter  with  provision  that 
the  defendant  should  be  entitled  to  visit  her  once  a  week,  an 
application  by  the  husband  of  the  mol^er  for  the  adoption  of 
the  child  will  not  be  granted  against  the  opposition  of  the 
father,  as  the  effect  of  granting  the  adoption  would  be  to 
terminate,  without  legal  reason,  the  natural  rights  of  the 
father. 

Application  for  the  adoption  of  an  infant. 

Ephraim  Berliner,  for  petitioner. 

Manfred  Nathan,  for  objectant, 

Foley,  S.  This  is  an  application  for  the  adoption 
of  an  infant  female  of  the  age  of  six  years.  The  peti- 
tioner is  the  husband  of  the  child's  mother.  The 
mother  secured  a  divorce  from  her  first  husband  in 
this  state.  The  decree  of  divorce  awarded  the  custody 
of  the  child  to  the  mother,  but  provided  that  the 
defendant  be  entitled  to  visit  his  daughter  once  a  week. 
This  application  is  opposed  by  the  father.  Previous 
to  1913  in  adoption  proceedings  notice  was  not 
required  to  a  parent  who  was  divorced  for  his  or  her 
cruelty  or  adultery.     Chapter  569,  Laws  of  1913, 


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314  Matter  of  Metzgbtu 

Surrogate's  Court,  New  York  County,  January,  1921.     [Vol.  114. 

amended  section  111  of  the  Domestic  Relations  Law 
by  providing  for  the  giving  of  such  notice  and  in  such 
manner  to  the  divorced  parent  as  directed  by  a  judge 
of  a  court  of  competent  jurisdiction.  The  statute 
(Dom.  Eel.  Law,  §  111,  subd.  3)  still  provides  that 
the  consent  of  a  parent  who  has  been  divorced  because 
of  his  or  her  cruelty  or  adultery  is  unnecessary.  Upon 
the  return  of  notice  given  under  the  statute. has  the 
divorced  parent  the  right  to  oppose  the  adoption, 
although  his  consent  is  unnecessary  thereto?  I  think 
he  has.  Otherwise  the  amendment  of  1913  to  section 
111  of  the  Domestic  Relations  Law  would  be  without 
reason  or  force.  Section  113  of  the  Domestic  Relations 
Law  provides  that  if  the  judge  or  surrogate  be  satis- 
fied that  the  moral  and  temporal  interests  of  the  per- 
son to  be  adopted  will  be  promoted  thereby  he  must 
make  an  order  allowing  and  confirming  the  adoption, 
reciting  his  reasons  therefor.  The  giving  of  notice  to 
the  divorced  parent  at  least  enables  him  to  acquaint 
the  court  with  the  absence  of  such  benefits  to  the  child, 
essential  as  they  are,  to  enable  the  surrogate  in  his 
discretion  to  grant  or  deny  the  adoption.  In  this  in- 
stance the  opportunity  given  the  divorced  parent 
justifies  the  legislative  provision  for  notice.  As  stated 
in  Matter  of  Livingston,  151  App.  Div.  1:  **  By  our 
statute  adoption  cannot  take  place  without  the  con- 
sent of  the  parents  of  the  minor  child,  unless  such 
parents  have  forfeited  their  natural  rights  to  the 
custody  of  the  child  under  circumstances  clearly 
defined  by  the  statute  itself."  The  custody  and  right 
of  visitation  of  the  child  were  fixed  by  the  decree  of 
divorce.  In  effect  the  father's  rights  were  curtailed, 
not  abrogated.  Under  section  1771  of  the  Code  of 
Civil  Procedure  these  provisions  of  the  decree  of 
divorce  may  later  be  modified  in  that  tribunal,  and  the 
father  may  ultimately  be  given  custody  of  his  daugh- 


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507  Madison  Ave.  Realty  Co.,  Inc.,  v.  Martin.    315 

Misc.]      Municipal  Coxirt  of  New  York,  January,  1921. 

ter.  The  natural  rights  of  the  parent  to  his  child  are 
sacred  and  are  jealously  guarded  by  the  law.  The 
powers  of  the  state  over  a  child  are  not  superior  to  the 
natural  rights  of  the  parent.  The  effect  of  granting 
this  adoption  would  be  to  terminate  the  natural  rights 
of  the  father  without  adequate  legal  reason  and  to 
modify  the  decree  of  the  Supreme  Court.  The  parties 
were  examined  before  me  at  length,  and  I  have  care- 
fully considered  the  different  phases  of  this  matter.  I 
am  convinced  that  the  interests  of  the  infant  will  best 
be  served  by  denying  this  application.  The  applica- 
tion is  denied. 

Application  denied. 


507   Madison   Ave.   Realty   Co.,   Inc.,  Landlord,  v. 
Nicholas  Maktin,  Tenant. 

(Municipal  Court  of  the  City  of  New  York,  Borough  of  Manhattan, 
Ninth  District,  January,  1921.) 

Lease  —  constrnction  of  —  personal  covenants  —  landlord  and 
tenant  —  cancellation  clause  —  summary  proceedings  —  evi- 
dence. 

If  there  is  any  doubt  or  uncertainty  as  to  the  meaning  of  a 
lease,  it  will  be  construed  in  favor  of  the  tenant.    (P.  318.) 

A  lease  not  in  terms  providing  that  the  conditions  and 
covenants  thereof  should  bind  the  legal  representatives,  heirs 
and  assigns  of  the  parties,  contained  the  following: 

"  Said  landlord  reserves  the  right  to  terminate  this  lease 
and  the  term  thereof  at  any  time  after  May  1,  1920,  in  case 
of  a  bona  fide  sale  of  the  property  upon  giving  90  days'  notice 
in  writing  to  said  tenant,  addressed  to  said  demised  premises, 
of  his  intention  to  so  terminate  the  same,  and  this  lease  and 
the  term  thereof  shall  cease,  determine  and  end  at  the  ex- 
piration of  90  days  from  the  day  when  such  notice  is  given." 
Held,  that  the  covenant  contained  in  said  clause  did  not  run 
with  the  land  but  was  purely  personal  to  the  landlord  and  he 
having  died  without  having  exercised  the  privilege  to  terminate 


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316    507  Madison  Ave.  Realty  Co.,  Inc.,  v.  Martin. 


Municipal  Court  of  New  York,  January,  1921.     [Vol.  114. 

the  lease,  it  could  not  be  exercised  by  any  subsequent  grantee 
of  the  premises.     (Pp.  317,  318.) 

The  present  landlord  in  a  summary  proceeding  against  the 
tenant  as  a  holdover  after  service  upon  him  of  the  ninety  days' 
notice  called  for  by  the  lease,  having  failed  to  establish  that 
the  conveyance  of  the  premises  to  said  landlord  by  the  grantee 
of  the  executors  of  the  original  landlord,  was  a  bona  fide  sale 
which  would  entitle  the  petitioner  to  any  rights  under  the  can- 
cellation clause,  even  if  it  were  held  that  the  eovenant  was 
one  running  with  the  land,  the  tenant  is  entitled  to  a  final  order 
dismissing  the  proceeding  upon  the  merits.    (Pp.  320,  321.) 

The  deposition  of  the  agent  of  the  landlord,  who  as  broker 
negotiated  the  lease  with  the  tenant,  was  inadmissible  in  evi- 
dence, the  provision  of  the  lease  not  being  ambiguous.  (Pj>. 
319,  320.) 

Summary  proceedings. 

Myers  &  Sherwin  (David  S.  Myers,  of  counsel),  for 
landlord. 

Arthur  S.  Luria  (George  L.  Ingraham,  of  counsel), 
for  tenant. 

Genung,  J.  This  is  a  holdover  proceeding  brought 
by  the  landlord  to  regain  possession  of  premises  on 
the  ground  that  the  tenant  is  holding  over  after  the 
expiration  of  his  lease. 

The  facts  are  not  disputed.  They  involve  the  inter- 
pretation of  the  lease  under  which  the  tenant  is  in 
possession. 

On  or  about  Deoember  19,  1912,  Simeon  J.  Drake 
leased  the  premises  to  the  tenant  herein.  Mr.  Drake 
died  on  October  6,  1914.  His  executors  conveyed  the 
premises  on  or  about  August  11, 1915,  to  a  corporation 
known  as  540  Madison  Avenue  Corporation.  This  con- 
veyance contained  a  provision  that  the  premises  were 
conveyed  subject  to  the  lease  between  Mr.  Drake  and 
Mr.  Martin,  the  tenant  herein.  On  May  3,  1920,  the 
540  Madison  Avenue  Corporation  served  a  notice  on 


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507  Madison  Ave.  Eealty  Co.,  Inc.,  v.  Martin.    317 

Misc.]      Munieipal  Court  of  New  York,  January,  1921. 

the  tenant  that,  under  paragraph  12  of  the  lease  in 
question,  hereinafter  quoted,  the  tenant  was  *  ^  notified 
that  it  is  the  intention  to  terminate  the  term  of  your 
said  lease,  said  termination  to  take  effect  ninety  days 
from  the  date  of  this  notice.** 

Some  time  after  this  notice  was  given  and  on  or 
about  June  22, 1920,  the  540  Madison  Avenue  Corpora- 
tion assigned  the  lease  to  the  petitioner  in  this  pro- 
ceeding. 

The  interesting  legal  question  involved  concerns  the 
said  paragraph  12  of  the  original  lease,  which  reads 
as  follows: 

**  12.  Said  Icmdlord  reserves  the  right  to  terminate 
this  lease  and  the  term  thereof  at  any  time  after  May 
1, 1920,  in  case  of  a  hona  fide  sale  of  the  property  upon 
giving  90  days*  notice  in  writing  to  said  tenant, 
addressed  to  said  demised  premises,  of  his  intention 
to  so  terminate  the  same,  and  this  lease  and  the  term 
thereof  shall  cease,  determine  and  end  at  the  expira^ 
tion  of  90  days  from  the  day  when  such  notice  is  given. 
And  thereafter  said  landlord  may  re-enter  upon  and 
take  possession  of  the  demised  premises  and  every 
part  thereof,  either  by  force  or  otherwise,  without 
being  liable  to  prosecution  or  damages  therefor,  and 
have  and  enjoy  the  said  premises  as  of  their  former 
estate,  free,  clear  and  discharged  of  this  lease  and  of 
all  rights  of  the  tenant  hereunder.  In  the  event  of 
the  cancellation  of  this  lease  in  the  manner  herein- 
before provided  the  landlord  shall  pay  to  the  tenant  as 
consideration  for  the  surrender  of  the  said  premises 
the  sum  of  five  thousand  ($5,000)  dollars.**  (Italics 
mine.) 

It  is  the  contention  of  the  tenant  that  the  privilege 
of  terminating  the  lease  on  90  days'  notice  was  per- 
sonal to  the  original  landlord,  Mr.  Drake,  and  that  it 
did  not  run  with  the  land,  and  that  inasmuch  as  Mr. 


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318    507  Madison  Ave.  Realty  Co.,  Inc.,  v.  Martin. 

Municipal  Court  of  New  York,  January,  1921.     [Vol.  114. 

Drake  died  without  having  exercised  the  privilege,  this 
privilege  necessarily  terminated  with  his  death  and 
could  not  be  exercised  by  any  subsequent  transferee 
of  the  property  If  this  be  so,  it  will  follow  that  the 
present  proceeding  cannot  be  maintained. 

The  lease  does  not  contain  any  clause  providing  that 
the  conditions  and  covenants  thereof  shall  bind  the 
legal  representatives,  heirs  and/or  assigns  of  the 
parties. 

The  language  used  by  the  parties  was  clear  and 
unequivocal.  It  was  neither  indefinite  nor  ambiguous. 
It  presents  a  pure  question  of  law,  to  wit,  the  con- 
struction of  the  language  thus  employed. 

It  may  well  be  observed  preliminarily  that  in  con- 
struing a  written  lease  the  general  rule  is  that  it  shall 
be  construed  against  the  grantor  and  that  if  there  be 
any  doubt  and  uncertainty  as  to  the  meaning  of  such 
lease  it  shall  be  construed  in  favor  of  the  grantee. 
Smith  V.  Rector,  107  N.  Y.  610,  619.  Even  irrespective 
of  this  canon  of  construction  it  is  my  opinion  that  the 
covenant  contained  in  this  clause  is  a  purely  personal 
one  and  does  not  run  with  the  land.  Eeeves  Real  Prop. 
833.  Consequently  the  reservation  of  the  right  to 
terminate  being  one  personal  to  Mr.  Drake,  it  ceased 
with  his  death,  and  could  not  thereafter  be  exercised 
by  any  subsequent  transferee.  I  cannot  find  any 
expressed  intent  in  the  entire  instrument  of  lease  to 
give  any  right  to  terminate  to  the  landlord's  legal 
representatives  or  assigns. 

In  Bruder  v.  Crafts  <&  D^ Amor  a  Co.,  79  Misc.  Rep. 
88,  the  Appellate  Term,  first  department,  held  that  a 
much  similar  clause  was  personal  to  the  original  land- 
lord and  could  not  be  exercised  by  an  assignee.  The 
court  there  said,  speaking  through  Lehman,  J.:  **  The 
original  landlord  was  interested  in  preserving  his 
right  to  make  a  sale  free  from  the  incumbrance  of  any 


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507  Madison  Ave.  Realty  Co.,  Inc.,  v.  Maetin.    319 

Misc.]       Municipal  Court  of  New  York,  January,  1921. 

lease  and  has  provided  in  the  lease  that  upon  a  sale 
he  shall  have  the  right  to  terminate  the  lease.  When 
he  sold  the  premises  and  his  immediate  assignee 
accepted  them  subject  to  the  lease  the  purpose  of  this 
clause  had  ceased.  It  is  true  that  the  new  landlord 
might  prefer  to  have  the  premises  encumbered  only  by 
a  lease  which  he  also  could  terminate,  but  in  the 
absence  of  appropriate  words  giving  him  such  a  right 
I  fail  to  see  how  we  can  consider  that  the  right 
reserved  to  the  original  landlord  passed  also  to  his 
assignee/* 

Thi^  ruling  was  followed  in  the  subsequent  case  of 
Krim  Realty  Corporation  v.  Varvori,  97  Misc.  Rep. 
407,  where  the  Appellate  Term,  speaking  through 
Sheam,  J.,  held  a  similar  clause,  worded  even  more 
strongly  in  the  landlord's  favor,  to  be  a  privilege  per- 
sonal to  the  original  landlord. 

The  other  authorities  relied  upon  by  the  landlord, 
including  Childs  Co.  v.  Burke,  110  Misc.  Bep.  103,  are 
readily  distinguishable,  as  they  all  relate  to  covenants 
manifestly  running  with  the  land,  and  are  so  worded 
and  provided,  whereas  the  above-quoted  covenant,  in 
my  judgment,  is  merely  personal. 

At  the  trial  the  tenant  offered  in  evidence  the  depo- 
sition of  the  agent  of  the  lessor,  who  negotiated  this 
lease  as  broker  with  the  lessee,  to  which  objection  was 
made  by  the  landlord  on  the  ground  that  it  would  tend 
to  alter,  vary  and  contradict  the  terms  of  a  written 
instrument.  While  there  are  cases  in  which  such  a 
deposition  would  be  admissible  to  show  the  intention 
of  the  parties  {Thomas  v.  Scutt,  127  N.  Y.  133;  Mur- 
doch V.  Gould,  193  id.  369;  Smith  v.  Finkelstein,  162 
App.  Div.  128),  in  view  of  the  finding  of  the  court  that 
the  provision  of  the  lease  is  not  ambiguous,  and  clearly 
indicates  the  intenton  of  the  parties  thereto,  the  depo- 
sition is  inadmissible  under  the  authorities.  Imperator 


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320    507  Madison  Ave.  Realty  Co.,  lire,  v.  Mabtiw. 

Municipal  Court  of  New  York,  January,  1921.     [Vol.  114. 

Realty  Co.  v.  Tall,  228  N.  Y.  447;  Thomas  v.  Scutt, 
supra;  King  v.  Hudson  River  Realty  Co.,  210  N.  Y.  467. 
The  provision  of  the  lease  in  question  refers  to  **  a 
bona  fide  sale.**  There  is  no  question  raised  that  the 
sale  by  the  executors  of  Simeon  J.  Drake,  the  original 
lessor,  to  the  540  Madison  Avenue  Corporation,  as 
shown  by  the  deed,  dated  August  11, 1915,  was  a  bona 
fide  sale.  But  in  the  mind  of  the  court  there  is  a  ques- 
tion as  to  whether  the  sale  from  the  540  Madison 
Avenue  Corporation  to  the  507  Madison  Avenue 
Realty  Co.,  Inc.,  was  a  bona  fide  sale.  It  appears  that 
on  February  5,  1920,  the  tenant  wrote  a  letter  to  the 
540  Madison  Avenue  Corporation  asking  '^  as  to  what 
are  the  possibilities  of  having  cancellation  clause  in 
our  lease  waived  for  the  balance  of  our  term.*'  On, 
February  7,  1920,  the  540  Madison  Avenue  Corpora- 
tion wrote  to  the  tenant  **  that  there  is  no  possibility 
of  our  waiving  the  cancellation  clause  contained  in 
your  lease  at  the  present  time.**  On  March  18,  1920, 
the  540  Madison  Avenue  Corporation  made  a  contract 
for  the  sale  of  the  property  to  the  507  Madison  Avenue 
Realty  Co.,  Inc.  On  May  3,  1920,  the  540  Madison 
Avenue  Corporation  served  the  notice  of  termination 
of  the  lease  on  the  tenant.  On  May  5,  1920,  the  540 
Madison  Avenue  Corx>oration  executed  a  deed  for  this 
property  to  the  507  Madison  Avenue  Realty  Co.,  Inc. 
In  other  words,  after  the  inquiry  by  the  tenant  as  to 
the  possibility  of  waiving  the  cancellation  clause,  the 
owner  made  a  contract  of  sale  to  another  corporation, 
and  two  days  after  giving  notice  to  the  tenant  of  ter- 
mination of  the  lease,  the  owner  delivered  the  deed  to 
the  other  corporation,  the  petitioner  in  this  proceed- 
ing. Thereafter  the  507  Madison  Avenue  Realty  Co., 
Inc.,  brought  this  proceeding,  relying  on  this  transfer 
as  a  bona  fide  sale,  and  claiming  it  would  entitle  it  to 
terminate  the  lease  of  the  present  tenant 


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BOATB  V.  BOATB.  321 

Misc.]      Municipal  Court  of  New  York,  January,  1921. 

In  view  of  these  events  the  court  is  of  opinion  that 
the  landlord  has  failed  to  establish  a  bona  fide  sale 
which  would  entitle  the  present  landlord  to  any  rights 
under  the  cancellation  clause  even  if  it  were  held  to 
be  a  covenant  running  with  the  land.  On  this  question 
of  fact  the  court  finds  in  favor  of  the  tenant. 

It  follows  that  the  tenant  is  entitled  to  a  final  order 
awarding  him  possession  of  the  premises  and  dismiss- 
ing the  petition  upon  the  merits. 

Ordered  accordingly. 


Adriennb   L.    BoATEy   Plaintiff,   v.   Gershon   Boats, 

Defendant. 

(Municipal  Court  of  the  City  of  New  York,  Borough  of  Brooklyn, 
Second  District,  January,  1921.) 

Husband  and  wife  —  when  payment  under  leparation  aipreement 
released  by  divorce. 

Upon  entry  of  the  final  decree  in  a  wife's  action  for  divorce, 
the  defendant's  legal  obligation  to  support  her  comes  to  an 
end  and  he  is  released  from  the  payment  of  any  sum  due  under 
a  separation  agreement  which  did  not  in  terms  provide  as  to 
the  length  of  time  the  weekly  payments  thereunder  should 
continue. 

However,  the  defendant  is  liable  for  any  payment  falling 
due  prior  to  the  entry  of  the  final  decree,  and  plaintiff  is  en- 
titled to  judgment  for  the  amount  thereof. 

Motion  for  a  bill  of  particulars  in  an  action  for 
separation. 

William  A.  Dempsey,  for  plaintiff. 

Martin  &  Kesselman  (David  F.  Price,  of  counsel), 
for  defendant. 

Law,  J.    The  case  is  submitted  upon  an  agreed  state 
of  facts.    The  plaintiff  and  defendant  were  husband 
21 


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322  BOATE  V.  BOATE. 


Municipal  Court  of  New  York,  January,  1921.     [Vol.  114. 

and  wife.  On  or  about  July  10, 1918,  they  entered  into 
a  separation  agreement  by  which  they  agreed  to  live 
separate  and  apart  from  each  other  during  their  nat- 
ural lives.  The  defendant  promised  to  pay  the  plain- 
tiff the  sum  of  ten  dollars  per  week  for  her  support 
and  maintenance  in  the  following  language  of  the 
agreement:  **  *  *  *  that  the  said  party  of  the 
first  part  shall  and  will  well  and  truly  pay  or  cause  to 
be  paid,  for  and  towards  the  better  support  and 
maintenance  of  his  said  wife,  the  sum  of  Ten  ($10) 
Dollars  per  week ;  the  first  payment  to  be  made  on  the 
date  of  the  signing  of  this  agreement  and  weekly 
thereafter,  which  the  said  party  of  the  second  part 
does  hereby  agree  to  take  in  full  satisfaction  for  her 
support  and  maintenance;  *  *  *.''  On  September 
30,  1920,  a  final  judgment  of  divorce  was  entered  in 
the  Supreme  Court,  Kings  county,  in  favor  of  the 
defendant  herein  against  this  plaintiff  because  of  the 
latter 's  adultery.  The  action  is  to  recover  sums 
claimed  to  have  fallen  due  under  the  agreement  since 
the  entry  of  the  final  judgment  of  divorce,  except  one 
weekly  payment  that  fell  due  prior  thereto.  The  ques- 
tion submitted  by  stipulation  of  the  parties  is  whether 
the  entry  of  the  final  decree  of  divorce  discharges  and 
releases  defendant  from  the  payment  of  any  sum  due 
under  the  agreement. 

I  have  not  been  able  to  find,  nor  have  counsel  cited, 
any  decided  case  directly  in  point.  The  plaintiff 
relies  upon  the  authority  of  the  cases  of  Randolph  v. 
Field,  84  Misc.  Rep.  403;  Oalusha  v.  Galtisha,  116 
N.  Y.  635,  and  Clark  v.  Fosdick,  118  id.  7.  But  in  none 
of  these  cases  had  a  final  judgment  of  divorce  been 
granted  the  defendant  because  of  the  adultery  of  the 
plaintiff.  In  the  case  of  Randolph  v.  Field,  supra,  it 
was  held  that  in  an  action  by  a  wife  to  recover  pay- 
ments alleged  to  be  due  under  a  separation  agreement, 
neither  adultery  on  her  part  before  the  separation 


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BoATE  V.  Boats.  323 


Misc.]      Municipal  Court  of  New  York,  January,  1921. 

agreement  was  made,  though  miknown  to  defendant^ 
nor  her  adultery  thereafter,  is  a  defense.  This  case 
simply  adopted  the  well-settled  rule  in  England  as 
laid  down  in  Fearon  v.  Earl  of  Aylesford,  14  Q.  B.  Div. 
792.  The  rule  is  sound,  but  it  rests  upon  reasons  not 
applicable  to  the  instant  case.  The  obligation  of  the 
husband  to  support  and  maintain  his  wife  and  to  pay 
for  necessaries  purchased  by  her  is  not  dependent 
upon  her  good  conduct,  nor  upon  her  fidelity  to  the 
marriage  vow.  He  is  bound  to  support  her  because 
of  the  marriage  relation.  In  Oalusha  v.  Qal'oslia, 
supra ^  Judge  Parker  said:  **  Because  of  the  marriage 
relation  the  husband  was  bound  to  support  his  wife. 
This  legal  obligation  constituted  the  basis  for  a  set- 
tlement of  their  affairs,  and  the  making  of  an  agree- 
ment by  which  it  should  be  definitely  determined  how 
much  he  should  be  obliged  to  contribute,  and  she  enti- 
tled to  receive  from  him,  for  her  support."  The 
separation  agreement  simply  defines  to  the  mutual 
satisfaction  of  the  parties  the  husband's  legal  obliga- 
tion to  support  his  wife.  Hence  it  follows  that  he 
would  be  liable  under  such  an  agreement  for  the  pay- 
ments therein  provided,  certainly  so  long  as  the 
marriage  relation  continued  to  exist. 

In  the  cases  of  Galusha  v.  Oalusha,  supra,  and  Clarlc 
V.  Fosdick,  supra,  it  was  held  that  the  agreement  was 
not  invalidated  by  a  subsequent  violation  of  the  mar- 
riage vow  on  the  part  of  the  defendant,  nor  by  the 
granting  of  a  decree  of  divorce  to  the  plaintiff. 
Again  these  cases  are  clearly  distinguishable  in  prin- 
ciple from  the  instant  case.  Where  the  wife  has  recov- 
ered a  final  judgment  of  divorce  against  the  husband, 
his  liability  to  provide  for  her  support  does  not  cease. 
The  statute  empowers  the  court  to  require  the  wrong- 
doing husband  to  provide  for  the  support  of  the  wife. 
The  agreement  creates  an  express  contractual  obliga- 


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324  BOATE  V.  BOATE. 


Municipal  Court  of  New  York,  January,  1921.     [Vol.  114. 

tion  substituted  by  the  act  of  the  parties  for  the  hus- 
band's general  legal  obligation  to  support  and  main- 
tain his  wife  while  the  marriage  relation  exists.  The 
express  contractual  obligation  is  equally  a  substitute 
for  his  liability  to  provide  for  her  support  by  order 
of  the  court  after  she  has  recovered  a  judgment  of 
divorce  against  him.  The  agreement  is  a  bar  to  the 
allowance  of  alimony.  So  holding  in  the  case  of 
Galusha  v.  GcUusha,  supra,  the  court  said:  **  The  argu- 
ment that  upon  the  granting  of  the  decree  of  divorce 
there  was  a  failure  of  consideration  to  support  the 
agreement  is  without  force."  Clearly  that  would 
be  so. 

But  in  the  instant  case  the  husband  (defendant)  has 
recovered  a  final  judgment  of  divorce  against  the  wife, 
the  plaintiff  herein.  His  legal  obligation  to  support 
her  because  of  the  marriage  relation  has  come  to  an 
end.  The  court  has  no  power  to  require  him  to  pay 
alimony  or  in  any  manner  to  provide  for  her  support. 
Unless  he  is  to  be  held  under  the  naked  terms  of  the 
agreement,  he  is  as  free  of  obligation  to  her  and  of 
liability  to  provide  for  her  support  as  before  the  mar- 
riage relation  was  contracted.  The  payments  under 
the  agreement  would  no  longer  represent  any  legal  or 
moral  obligation  whatsoever.  And  yet  it  is  contended 
that  because  there  was  a  consideration  for  the  agree- 
ment at  the  time  it  was  made,  the  defendant  must  go 
on  making  the  weekly  payments  to  the  plaintiff  for  the 
balance  of  her  life.    I  cannot  subscribe  to  that  view. 

That  there  can  be  a  failure  of  consideration  because 
of  events  happening  after  the  making  of  the  separa- 
tion agreement  would  seem  to  have  support  in  the 
Galusha  case,  above  cited.  At  page  643  the  court  says : 
**  The  consideration  for  an  agreement  of  separation 
fails,  and  the  contract  is  voided  when  separation  does 
not  take  place ;  or  where,  after  it  has  taken  place,  the 


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BOATE  V.  BOATE.  325 


Misc.]       Mnnieipal  Court  of  New  York,  January,  1921. 

parties  are  reconciled  and  cohabitation  resumed. '*  If 
the  consideration  fails  where  the  parties  are  recon- 
ciled and  cohabitation  resumed^  it  would  seem  clear 
that  the  consideration  would  equally  fail  when  the 
defendant  is  released  from  all  legal  obligation  and 
liability  resulting  from  the  marriage  relation. 

But  there  is  still  another  ground  for  holding  that 
the  defendant  is  no  longer  liable  under  the  terms  of 
the  agreement.  I  think  there  was  an  implied  condi- 
tion that  the  defendant's  obligation  to  make  the  weekly 
payments  should  terminate  with  his  marriage  obliga- 
tion to  support  the  plaintiff  and  his  liability  to  pro- 
vide such  support  by  order  of  the  court  or  otherwise. 
It  will  be  observed  that  there  is  no  express  provision 
in  the  separation  agreement  as  to  the  length  of  time 
the  weekly  payments  shall  continue.  The  agreement 
does  not  say  that  the  payments  shall  be  made  during 
the  plaintiff's  natural  life.  The  plaintiff  does  agree 
to  take  the  payments  **  in  full  satisfaction  for  her 
support  and  maintenance."  It  seems  clear,  then,  that 
it  was  not  within  the  contemplation  of  the  parties  that 
the  defendant's  obligations  under  the  agreement 
would  survive  a  decree  of  absolute  divorce  in  favor 
of  the  defendant  because  of  the  plaintiff's  adultery. 
The  agreement  was  in  lieu  of  his  legal  obligation  and 
liability  to  provide  *^  support  and  maintenance,"  and 
was  so  accepted  by  the  plaintiff.  If  such  legal  obliga- 
tion and  liability  ceased  to  exist,  there  would  no 
longer  be  any  just  basis  for  the  weekly  payments 
under  the  agreement,  and  it  is  reasonable  to  presume 
that  the  parties  contemplated  that  the  operation  of 
the  agreement  would  be  limited  accordingly.  If,  from 
the  nature  of  the  contract,  it  is  apparent  that  the  par- 
ties contracted  on  the  basis  of  the  continued  existence 
of  the  defendant's. liability  to  furnish  support  because 
of  the  marriage,  the  implied  condition  exists,  and  it 


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326  BOATE  V.  BOATE. 


Municipal  Court  of  New  York,  January,  1921.     [Vol.  114. 

is  presumed  that  the  contract  was  made  upon  sudi 
condition  and  that  the  parties  contemplated  the  con- 
tinued existence  of  the  defendant's  marriage  liability 
for  the  support  of  the  plaintiflf.  Dexter  v.  Norton,  47 
N.  Y.  62-65;  Stewart  v.  Stone,  127  id.  500.  It  could 
hardly  have  been  within  the  contemplation  of  the  par- 
ties that  the  defendant  would  go  on  making  the  weekly 
payments  for  the  plaintiff's  **  support  and  mainte- 
nance "  after  a  decree  of  absolute  divorce  had 
relieved  him  of  the  legal  liability  for  which  the  agree- 
ment was  a  mere  substitute. 

So  far  as  concerns  the  payments  falling  due  under 
the  agreement  after  September  30,  1920,  the  date  of 
the  entry  of  the  final  decree  of  divorce,  judgment 
should  be  in  the  defendant's  favor.  To  hold  other- 
wise would  shock  the  common  sense  of  justice.  How- 
ever, I  think  the  defendant  would  be  liable  for  any 
payments  falling  due  prior  to  the  entry  of  the  final 
decree.  In  her  bill  of  particulars  the  plaintiff  alleges 
that  the  defendant  **  has  failed  to  pay  plaintiff  the 
said  sum  of  Ten  ($10)  Dollars  per  week  from  the  25th 
day  of  September,  1920  to  date."  The  stipulation  of 
the  parties  does  not  in  express  terms  admit  the  alle- 
gations in  the  plaintiff's  bill  of  particulars,  but  it  is 
obvious  that  such  was  the  intention.  It  appears, 
therefore,  that  a  weekly  payment  came  due  September 
25,  1920.  The  plaintiff  is,  therefore,  entitled  to  judg- 
ment for  ten  dollars. 


Judgment  for  plaintiff. 


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Guaranty  Trust  Co.  v.  Meeb.  32/ 

Mise.]  Supreme  Court,  February,  1921. 


0UARAKTY  Trust  Company  op  New  York,  Plaintiff  v. 
Joseph  Meer,  Defendant. 

(Supreme  Court,  New  York  Special  Term,  February,  1921.) 

Pleading  —  when  demurrer  to  complaint  sustained  —  contracts  — 
negotiable  instruments  —  damages  —  foreign  exchange  —  Per-f 
wmal  Property  Law,  §§  146,  146(8),  166. 

A  complaint  alleged  a  written  contract  under  which  plain- 
tiff agreed  to  sell  and  deliver  to  defendant  at  the  city  of  New 
York  600,000  French  francs,  check  on  Paris,  France,  at  the 
rate  of  8.33  francs  per  dollar.  Within  a  few  days  after  de- 
fendant had  notified  plaintiff  that  he  repudiated  the  contract, 
plaintiff  sold  the  francs  in  the  city  of  New  York  at  the  then 
current  market  rate  of  16.56  francs  per  dollar,  and  as  a  result 
of  the  credit  to  defendant  of  the  amount  realized  on  such  sale, 
defendant  still  remained  indebted  to  plaintiff  in  a  certain  sum 
for  which  judgment  was  demanded.  Keld,  that  the  measure 
of  damages,  in  the  absence  of  an  allegation  of  "  special  cir- 
cumstances showing  proximate  damage  of  a  greater  amount,'' 
was  under  section  145(3)  of  the  Personal  Property  Law  the 
difference  between  the  contract  price  and  the  market  price  at 
the  time  when  the  money  ought  to  have  been  accepted. 

It  appearing  that  had  plaintiff  held  the  money  until  the  date 
fixed  for  its  delivery,  the  loss  sustained  would  have  been  several 
thousand  dollars  less  than  established  by  the  sale,  a  demurrer 
to  the  complaint  on  the  ground  that  plaintiff  in  his  demand 
for  judgment  had  adopted  the  wrong  measure  of  damages,  will 
be  sustained. 

Motion  to  overrule  demurrer. 

Frank  M.  Patterson,  for  plaintiff. 

Jerome,  Band  &  Kressel,  for  defendant. 

Donnelly,  J.  This  is  a  motion  to  overrule  the 
demurrer  interposed  by  the  defendant  to  the  complaint 
herein  on  the  ground  that  it  does  not  state  facts  suffi- 


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328  Guaranty  Tbust  Co.  v.  Meer. 

Supreme  Court,  February,  1921.  [Vol.114. 

cient  to  constitute  a  cause  of  action.  The  complaint 
in  substance  alleges  that  heretofore,  and  on  or  about 
the  9th  day  of  October,  1919,  the  plaintiff  and  the 
defendant  entered  into  an  agreement.in  writing  where- 
in and  whereby  it  was  mutually  agreed  between  them 
that  the  plaintiff  should  sell  and  deliver  to  the  defend- 
ant at  the  city  of  New  York,  at  any  time  during  July, 
1920,  at  the  defendant's  option,  500,000  French  francs, 
check  on  Paris,  France,  at  the  rate  of  8.33  francs  per 
dollar,  for  the  total  sum  of  $60,024,  and  that  the 
defendant  should  accept  the  same  from  the  plaintiff, 
and  pay  therefor  said  sum  of  $60,024.  That  on  or 
about  the  23d  day  of  April,  1920,  the  defendant  notified 
the  plaintiff  that  he  repudiated  said  contract  and 
would  not  accept  said  500,000  francs,  or  pay  therefor, 
or  carry  out  the  terms  of  said  agreement  on  his  part. 
That  the  plaintiff  was  ready  and  willing  to  perform 
said  agreement  on  its  part,  and  would  have  delivered 
to  defendant  the  said  500,000  francs,  according  to  the 
terms  of  said  contract  but  for  the  defendant's  said 
repudiation.  That  on  or  about  the  29th  day  of  April, 
1920,  and  subsequent  to  said  repudiation  the  plaintiff 
sold  said  500,000  French  francs,  the  amount  of  said 
check  on  Paris,  in  the  city  of  New  York,  at  the  then 
current  market  rate  of  16.56  francs  per  dollar,  realiz- 
ing as  a  result  of  the  sale  $30,193.33,  and  that  as  a 
result  of  the  credit  of  this  item  to  the  defendant,  the 
defendant  still  remained  indebted  to  the  plaintiff  in 
the  sum  of  $29,830.77,  for  which  the  plaintiff 
demanded  judgment  in  that  amount.  The  defendant 
served  a  demurrer,  reciting  as  its  ground  that  the 
complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  Plaintiff,  upon  receipt  of  such 
demurrer,  moved  to  overrule  the  same  and  for  jud<r- 
ment  on  the  pleadings.  The  points  made  by  the  defend- 
ant in  support  of  the  demurrer  are:   (a)   That  the 


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Guaranty  Trust  Co.  v.  Meer.  329 

Misc.]  Supreme  Court,  February,  1921. 

alleged  contract  comes  within  the  purview  and  under 
the  provisions  of  the  Personal  Property  Law  of  the 
state  of  New  York,  and  (b)  that  the  plaintiff  has 
adopted  the  wrong  measure  of  damages  and  no  facts 
from  which  the  proper  measure  of  damages  can  be 
ascertained  are  alleged.  It  has  been  decided  in  at 
least  two  recent  cases  that  section  85  of  the  Personal 
Property  Law  (Statute  of  Frauds)  applies  to  the 
sale  of  foreign  exchange.  Equitable  Trust  Co.  v. 
Keene,  111  Misc.  Rep.  544;  Reisfeld  v.  Jacobs,  107  id. 
1.  In  the  case  of  Equitable  Trust  Co.  v.  Keene,  supra, 
the  court  draws  the  distinction  between  a  **  com- 
modity ^^  and  a  **  chose  in  action,"  and  holds  that  if 
the  agreement  be  regarded  as  one  to  sell  **  English 
pounds  '^  it  is  covered  by  the  rule  that  foreign  money 
when  dealt  in  in  this  country  is  to  be  regarded  as  a 
commodity ;  if,  on  the  other  hand,  it  is  a  contract  by 
the  plaintiff  to  make  available  to  the  defendant  *'a 
credit  of  the  amount  specified  at  the  point  specified,*' 
then  it  is  an  agreement  to  sell  a  chose  in  action,  and  in 
either  case  comes  within  the  provisions  of  section  85 
of  the  Personal  Property  Law.  While  it  is  true  that 
the  Statute  of  Frauds  is  not  available  on  demurrer 
against  this  complaint  —  the  allegation  being  that  the 
contract  is  in  writing  —  yet  these  decisions  are  illumi- 
nating in  showing  the  trend  towards  treating  these 
contracts  as  dealings  in  commodities  or  choses  in 
action.  The  plaintiff  contends  that  the  contract  in 
question  under  the  case  of  Equitable  Trust  Co.  v. 
Keene  constitutes  a  sale  of  a  chose  in  action,  and  that 
by  section  156  of  the  Personal  Property  Law  a  chose 
in  action  is  expressly  excluded  from  the  purview  and 
application  of  section  145  of  the  Personal  Property 
Law,  which  is  the  only  section  of  that  law  germane  to 
the  ground  of  **  improper  measure  of  damages  *' 
raised  by  the  demurrer.     For  the  purposes  of  this 


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330      Guaranty  Tbust  Co.  v.  Mebk. 

Supreme  Court,  January,  1921.  [Vol.114. 

motion  I  am  willing  to  agree  with  the  contention  of 
the  plaintiff  to  the  extent  of  holding  that  the  contract 
in  question  is  one  for  the  sale  of  a  chose  in  action, 
and  that  section  145  of  the  Personal  Property  Law, 
as  modified  by  section  156  of  that  act,  does  not  apply 
to  this  sale.  The  plaintiff,  however,  insists  that 
neither  the  rule  of  damages  as  contained  in  the 
Personal  Property  Law,  nor  as  stated  at  common  law, 
and  which  is  supposed  to  be  codified  by  section  145  of 
the  Personal  Property  Law,  applies  to  this  particular 
transaction ;  that  the  instant  case  is  one  of  first  impres- 
sion, and  that  the  court  should  evolve  a  new  measure 
of  damages  to  meet  the  exigencies  of  this  class  of 
cases,  and  that  the  new  measure  of  damages  should 
be  predicated  upon  the  idea  that  foreign  exchange  is 
perishable  in  nature,  and  that  therefore  a  vendor  of 
foreign  exchange  in  case  of  an  anticipatory  breach  by 
the  vendee  is  under  a  duty  at  the  time  of  the  breach  to 
sell  the  foreign  exchange  at  once  in  order  to  mitigate 
the  loss  of  the  vendee.  The  plaintiff  further  suggests 
that  this  new  rule  of  damages  should  be  based  on 
logic  and  reason.  I  see  no  necessity  for  a  new  measure 
of  damages  to  compute  the  loss  arising  out  of  an 
anticipatory  breach  of  the  sale  of  foreign  exchange. 
The  sale  of  foreign  exchange  runs  into  millions  every 
year  in  this  city,  the  same  as  the  sale  of  other  objects 
of  sale,  and  there  is  no  reason  that  I  know  of  why  it 
should  have  exclusive  safeguards.  The  claim  that 
foreign  exchange  is  perishable  is  not  borne  out  by  the 
business  generally,  nor  the  instant  case  in  particular. 
Perishable  goods  in  the  very  nature  of  things  con- 
tinue to  decline  in  value  as  time  advances,  and  are  in 
imminent  danger  of  being  rendered  valueless.  Foreign 
exchange  may  enhance  in  value  in  the  future  as  well 
as  decline,  and  in  the  transaction  alleged  in  this  com- 
plaint had  the  plaintiff  held  the  francs  until  the  date 


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GuAKANTY  Tbust  Co.  V.  Mebb.  331 

Misc.]  Supreme  Court,  January,  192L 

of  the  delivery,  July  31,  1920,  the  loss  sustained  by 
the  defendant  would  have  been  $9,000  less  than  was 
established  by  the  sale  on  April  29,  1920,  the  date  of 
the  breach.  In  my  opinion,  whether  the  contract  is 
treated  as  one  for  the  sale  of  a  commodity  or  one  for 
the  sale  of  a  chose  in  action,  the  measure  of  damages 
for  an  anticipatory  breach  would  be  the  same.  If 
treated  as  a  commodity,  section  145  of  the  Personal 
Property  Law  would  apply,  and  the  provisions  of  this 
section  are  merely  declaratory  of  the  common  law, 
and  if  treated  as  a  chose  in  action,  the  rules  of  damage 
as  stated  at  common  law  would  obtain.  Section  145 
of  the  Personal  Property  Law  provides  as  follows: 
**  Action  for  damages  for  nonacceptance  of  the  goods. 
3.  Where  there  is  an  available  market  for  the  goods  in 
question,  the  measure  of  damages  is,  in  the  absence  of 
special  circumstances,  showing  proximate  damage  of  a 
greater  amount,  the  difference  between  the  contract 
price  and  the  market  or  current  price  at  the  time  or 
times  when  the  goods  ought  to  have  been  accepted,  or, 
if  no  time  was  fixed  for  acceptance,  then  at  the  time 
of  the  refusal  to  accept."  There  is  no  claim  alleged 
or  advanced  by  the  plaintiff  of  *  *  special  circumstances 
showing  proximate  damage  of  a  greater  amount. '^ 
The  common-law  rule  in  the  case  of  an  anticipatory 
breach  of  a  contract  of  sale  of  goods  including  the 
ordinary  measure  of  damages  is  stated  in  Windmuller 
V.  Pope,  107  N.  Y.  674,  as  follows:  ''  The  defendants 
having  on  the  12th  of  June,  1880,  notified  the  plaintiffs 
that  they  would  not  receive  the  iron  rails,  or  pay  for 
them,  and  having  informed  them  on  the  next  day  that 
if  they  brought  the  iron  to  New  York  they  would  do  so 
at  their  own  peril,  and  advised  them  that  they  had 
better  stop  at  once  attempting  to  carry  out  the  contract, 
so  as  to  make  the  loss  as  small  as  possible,  the  plain- 
tiffs were  justified  in  treating  the  contract  as  broken 


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332  Q-UARANTY  Trust  Co.  v,  Meer. 

Supreme  Court,  January,  1921.  [Vol.  114. 

by  the  defendant  at  that  time,  and  were  entitled  to 
bring  the  action  immediately  for  the  breach,  without 
tendering  the  delivery  of  the  iron,  or  awaiting  the 
expiration  of  the  period  of  performance  fixed  by  the 
contract;  nor  could  the  defendants  retract  tlieir 
renunciation  of  the  contract  after  the  plaintiffs  had 
acted  upon  it  and,  by  a  sale  of  the  iron  to  the  other 
parties,  changed  their  position  (cases  cited)."  The 
ordinary  rule  of  damages  in  an  action  by  a  vendor  of 
goods  and  chattels  for  a  refusal  by  the  vendee  to 
accept  and  pay  for  them  is  the  difference  between  the 
contract  price  and  the  market  value  of  the  property 
at  the  time  and  place  of  delivery.  The  plaintiff  may 
claim,  however,  on  account  of  the  fluctuation  of  the 
market  in  foreign  exchange  that  it  was  the  duty  of 
the  plaintiff  to  sell  these  French  francs  at  the  time  of 
the  breach  in  order  to  mitigate  the  loss.  This  situa- 
tion is  disposed  of  by  the  case  of  Saxe  v.  Penokee  Lum- 
ber Co.,  159  N.  Y.  371,  where  the  court  at  page  378  said: 
**  *  There  is  another  pertinent  rule  of  damages,  that  the 
party  who  suffers  from  a  breach  of  contract  must  so 
act  as  to  make  his  damages  as  small  as  he  reasonably 
can.'  A  just  rule,  indeed,  and  applied  wherever- need- 
ful, but  one  wholly  without  practical  application  to  a 
case  where  the  subject  matter  of  the  contract  has  a 
market  value  at  the  time  and  place  of  delivery. '*  The 
motion  to  overrule  the  demurrer  is  denied,  and  the 
demurrer  is  sustained  on  the  ground  that  the  plain- 
tiff has  adopted  the  wrong  measure  of  damages  in 
demanding  judgment. 

Ordered  accordingly. 


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Hennenlotter  v.  De  Okvaxanos.  333 

Misc.]  Supreme  Court,  February,  1921. 


Theodore   B.    Hennenlotter,   Plaintiff,   v.   Dolores 
QuiNTANiLLA  De  Orvananos,  Defendant. 

(Supreme  Court,  Kings  Trial  Term,  February,  1921.) 

Negotiable  instnimeiita  —  check  drawn  in  Mexico  and  payable  in 
New  York  on  condition  considered  to  be  a  Mexican  transaction 
—  when  defendant  entitled  to  judgment. 

A  check  written  in  the  Spanish  language  and  payable  in 
dollars  in  New  York  city,  was  made  by  defendant,  a  firm  of 
bankers  in  Mexico,  and  there  delivered  to  the  payee  upon  the 
condition  in  writing  that  if  a  draft  given  to  defendant  by  the 
payee  at  the  time,  was  not  paid,  the  check  was  to  be  void  and 
of  no  value.  The  draft  was  not  paid,  and  payment  of  the 
check  was  stopped.  In  an  action  on  the  check,  which  came 
to  plaintiff's  assignor  by  indorsements  made  in  Mexico,  defend- 
ant pleaded  a  breach  of  the  condition  upon  which  the  check 
was  given,  and  all  the  facts  showed  that  the  case  presented  a 
Mexican  transaction  as  to  all  parties  except  the  drawee  of  the 
check.  Held,  that  New  York  law  does  not  apply  and  defendant 
is  entitled  to  judgment. 

AcnoN  on  two  instruments  for  the  payment  of 
money. 

Bonynge  &  Bonynge  (Paul  Bonynge,  of  counsel), 
for  plaintiff. 

Stewart  &  Shearer  (MoCready  Sykes,  of  counsel), 
for  defendant. 

Lazansky,  J.  Action  on  two  instruments  for  the 
payment  of  money  similar  in  form  to  and  conceded 
to  be  checks  such  as  are  commonly  used  in  this  state. 
The  checks  were  executed  and  delivered  in  Mexico  **  to 
the  order  of  "  a  person  named,  payable  in  dollars  in 
New  York  city  by  a  firm  conceded  to  be  bankers  and 
were  written  in  the  language  used  in  Mexico.  They 
came  to  plaintiff's  assignor  by  indorsements  made  in 


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334  HenneniiOtter  v.  Db  Orvananos. 

Supreme  Court,  February,  1921.  [Vol.114. 

Mexico.  These  indorsements  were  in  the  form  used 
in  this  state  in  the  usual  course  of  negotiation.  The 
checks,  with  others,  were  delivered  to  the  payee  upon 
the  condition  in  writing  that  if  two  drafts  given  to 
the  defendant  at  the  same  time  by  the  payee  were  not 
paid  then  the  checks  were  to  be  void  and  of  no  value. 
The  drafts  were  not  paid  and  defendant  stopped  pay- 
ment of  the  checks  in  suit.  As  a  defense,  defendant 
pleads  breach  of.  the  condition.  If  the  laws  of  this 
state  be  applicable  to  the  obligation  of  the  drawer  of 
the  checks,  the  defense  is  not  good,  because  plaintiff's 
assignor  is  a  holder  for  value  in  due  course.  If,  how- 
ever, the  laws  of  Mexico  apply,  then  the  defense  is 
valid.  According  to  the  testimony,  in  Mexico  these 
checks  are  not  negotiable  and  would  be  subject  to  the 
defense.  There  a  check  may  be  payable  to  an  in- 
dividual and  is  not  negotiable.  A  check  payable  to 
the  order  of  a  person  or  a  person  or  order  is  unknown 
to  Mexican  law.  A  check  may  be  payable  to  bearer 
and  is  negotiable  by  delivery.  If  the  checks  wore 
deemed  bills  of  exchange  or  drafts  as  known  here, 
they  would  not  be  negotiable  in  Mexico,  because,  as 
testified,  they  do  not  contain  certain  items  essential 
to  such  instruments  under  the  law,  and,  therefore, 
would  be  merely  choses  in  action  or  **  credits  ''  and 
subject  to  the  defense.  Do  the  laws  of  New  York  or 
Mexico  apply?  The  obligation  of  the  drawer  of  a  bill 
of  exchange  is  determined  by  the  law  of  the  place 
where  he  delivered  it.  Amsinck  v.  Rogers^  189  N.  Y. 
252.  It  might  be  interesting  to  consider  the  proposi- 
tion that  a  check  is  practically  the  same  as  a  bill  of 
exchange  (which  has  been  the  subject  of  discussion 
by  the  courts  and  text  book  writers)  and,  therefore, 
the  rule  stated  should  be  applied  here.  But  that  need 
not  be  discussed  in  light  of  the  conclusion  reached. 
While  it  was  not  necessarv  to  the  decision  in  that  case. 


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Hennenlottbr  v.  Db  Orvananos.  335 

Misc.]  Supreme  Court,  February,  1921. 

the  court  in  Amsinck  v.  Rogers,  supra,  states  as  a  rule 
laid  down  in  Hibernia  National  Bank  v.  La^ombe,  84 
N.  Y.  367,  that  the  obligation  of  the  drawer  of  a  check 
is  determined  by  the  law  of  the  place  where  it  is 
payable.  In  thus  stating  this  rule  the  court  in  the 
Amsinck  case  was  but  differentiating  the  case  of  a 
bill  of  exchange  from  that  of  a  check.  However,  it 
is  so  stated  that  it  would  seem  to  be  a  confirmation 
of  what  the  court  says  the  Hibernia  National  Bank 
case  does  hold.  Under  these  circumstances,  despite 
the  general  rules  laid  down  in  Union  National  Bank 
V.  Chapman,  169  N.  Y.  538,  it  would  be  necessary 
to  hold  in  this  case  that  the  law  of  New  York  is 
applicable,  were  it  not  that  the  court  in  the  Amsinck 
case  seems  to  have  overlooked  the  effect  in  this  respect 
of  section  321  of  the  Negotiable  Instruments  Law 
which  provides:  **  Check  defined —  A  check  is  a  bill 
of  exchange  drawn  on  a  bank  payable  on  demand." 
See  Casper  v.  Kuhne,  79  Misc.  Eep.  411.  This  section 
was  discussed  in  the  Amsinck  case  on  a  question  of 
whether  the  instrument  under  consideration  was  a 
check  or  a  bill  of  exchange.  But  as  to  whether  it 
changed  the  law  as  the  court  in  the  Amsinck  case  says 
it  was  held  in  the  Hibernia  National  Bank  case  was  not 
the  subject  of  consideration.  The  Negotiable  Instru- 
ments Law  was  not  in  existence  at  the  time  of  the 
decision  in  the  Hibernia  National  Bank  case.  Uni- 
formity of  rules  was  one  of  the  reasons  for  the  adop- 
tion of  this  legislation.  To  apply  the  rule  of  the 
Amsinck  case  to  a  check  makes  for  uniformity  and 
ends  a  seeming  difference  which  existed  with  but 
little,  if  any,  impressive  reason.  It  will,  therefore, 
be  held  that  the  Mexican  law  is  applicable.  Because 
the  checks  were  drawn  on  a  form  common  to  our 
state  and  unknown  to  Mexican  law  and  because  100 
of  them  came  to  the  hands  of  plaintiff's  assignor  by 


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336  Hennenlotter  v,  De  Orvananos. 

Supreme  Court,  February,   1921.  [Vol.  114. 

negotiation  in  form  usual  in  New  York,  it  is  argued 
defendant  is  estopped  to  deny  that  New  York  law  is 
applicable.  But  plaintiflf's  assignor  was  not  led  to 
believe  by  any  acts  of  defendant  that  she  would  not 
assert  a  defense  to  the  cheeks,  if  one  she  had,  as  she 
would  have  the  right  under  the  Mexican  law.  Even 
if  she  knew  the  checks  had  been  negotiated  as  checks 
are  here  negotiated,  of  which  there  is  no  proof,  she 
never  indicated  that  she  would  not  assert  her  rights 
under  the  Mexican  law.  There  is  no  proof  that  she 
knew  the  significance  of  the  form  of  the  checks.  There 
is  no  estoppel  to  be  invoked  against  defendant.  It  is 
also  insisted  that  the  form  of  the  check  and  the  manner 
of  the  negotiation  of  other  of  defendant's  checks, 
which  reached  plaintiff's  assignor,  indicated  an  inten- 
tion of  defendant  to  have  the  New  York  law  apply.  In 
the  first  place  there  is  no  proof  that  she  knew  of  the 
significance  of  the  form  of  the  check  and  there  is  no 
proof  that  she  knew  how  others  issued  by  her  had  been 
negotiated.  Defendant  knew  the  checks  in  the  case 
were  payable  in  New  York.  But  in  light  of  the  condi- 
tion on  which  they  were  issued  to  the  payee,  how  can 
it  be  said  she  intended  the  laws  of  New  York  to  apply? 
Such  an  intention  would  have  made  the  conditional 
agreement  an  idle  transaction.  Besides  the  facts  in 
the  case  show  it  was  a  Mexican  transaction  as  to  all 
parties  except  the  drawee.  There  will  be  judgment 
for  defendant. 

Judgment  for  defendant. 


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Matter  of  O'Connor  v.  Pub.  Serv.  Comm.    337 
Misc.]  Supreme  Coart|  February,  1921. 


Matter  of  the  Application  of  James  K.  O'Connor, 
Individually  and  as  Mayor  of  the  City  of  Utica, 
and  the  City  of  Utica,  for  a  Writ  of  Prohihition, 
Relators,  v.  The  Public  Service  Commission  of  the 
State  of  New  York  for  the  Second  District,  and 
New  York  State  Railways,  Defendants. 

(Supreme  Court,  Schoharie  Special  Term,  February,  1921.) 

Writ  of  prohibition  —  city  of  Utica  —  street  railways  —  increase 
of  fare — public  senrice  commission — franchises  —when  motion 

for  alternative  writ  of  prohibition  deniod. 

The  New  York  State  Railways,  a  domestic  corporation 
operating  street  surface  railroads,  among  other  places,  in  the 
city  of  Utica,  having  instituted  a  proceeding  before  the  public 
service  commission  for  permission  to  increase  its  rate  of  fare, 
the  city,  as  a  basis  of  demand  for  an  alternative  writ  of  pro- 
hibition commanding  said  corporation  and  the  public  service 
commission  to  desist  from  further  proceedings  in  the  matter, 
set  up  as  a  bar  to  the  jurisdiction  of  the  public  service  com- 
mission, sixteen  franchises  granted  by  the  city  between  May 
6,  1886,  and  January  18,  1907,  to  said  corporation,  or  its 
predecessors  in  interest,  all  of  which  franchises  were  without 
limitation  except  that  the  railway  corporation  would  obey  the 
Railroad  Law,  including  any  changes  in  the  rate  of  {are  made 
by  the  legislature  or  its  delegated  agent,  the  public  service 
commission.  Held,  that  the  motion  for  the  alternative  writ 
of  prohibition  must  be  denied. 

Application  for  an  alternative  writ  of  prohibition 
directed  to  the  public  service  commission  of  the  state 
of  New  York  for  the  second  district,  and  the  New 
York  State  Railways,  commanding  them  and  each  of 
them  to  desist  and  refrain  from  any  further  proceed- 
ings in  the  matter  of  the  application  of  the  New  York 
State  Railways,  now  pending  before  the  said  public 
22 


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338    Matter  of  O'Connor  v.  Pub.  Serv.  Comm. 

Supreme  Court,  February,  1921.  [Vol.  114. 

service  commission,  for  permission  to  increase  its  rate 
of  fare  to  ten  cents  in  the  city  of  Utica. 

Fred  F.  Scanlan,  corporation  counsel,  for  relator. 

Kernan  &  Kernan  (Warnick  J.  Kernan,  of  counsel), 
for  defendant  New  York  State  Railways. 

No  appearance  for  public  service  conmiission. 

Nichols,  J.  The  New  York  State  Railways  is  a 
domestic  corporation  operating  street  surface  rail- 
roads, among  other  places,  in  the  city  of  Utica,  N.  Y. 
Between  May  6, 1886  and  January  18, 1907,  there  was 
granted  to  it  or  to  its  predecessors  in  interest  by  the 
city  of  Utica,  sixteen  franchises  which  are  now  set  up 
as  a  bar  to  the  jurisdiction  of  the  public  service  com- 
mission in  the  proceeding  which  has  been  instituted 
by  the  New  York  State  Railways  for  an  increased  rate 
of  fare  and  are  made  the  basis  of  the  demand  of  said 
city  for  an  alternative  writ  of  prohibition  directed  to 
the  public  service  commission  of  the  second  district 
and  the  New  York  State  Railways,  commanding  them 
and  each  of  them  to  desist  and  refrain  from  any 
further  proceedings  in  the  matter  of  the  application 
of  the  said  New  York  State  Railways  for  permission 
to  increase  its  rate  of  fare. 

Six  of  the  aforesaid  franchises  contain  a  statement 
incorporated  therein  either  to  the  effect  that  the 
application  is  granted  and  franchise  given,  **  upon  the 
express  condition  that  the  provisions  pertinent  thereto 
of  the  Act  of  the  Legislature  of  the  State  of  New  York, 
passed  May  6th,  1884  entitled  'An  Act  to  provide  for 
the  construction,  extension,  maintenance  and  opera- 
tion of  street  surface  railroads  and  branches  thereof  in 
cities,  towns  and  villages,^  and  all  acts  amendatory 
thereof  or  supplemental  thereto  be  in  all  things  com- 


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Matter  of  O'Connor  v.  Pub.  Serv.  Comm.    339 

Miso.]  Supreme  Courts  February,  1921. 

plied  with  *'  or  that  the  consent  *'  is  given  pursuant  to 
the  provisions  of  chapter  252  of  the  Laws  of  1884 
•  *  •  and  the  acts  amendatory  thereof  *  *  */' 
Hereinafter  in  this  opinion,  these  six  franchises  will  be 
referred  to  as  **  B  ''  franchises,  the  term  **  B  "  being 
used  for  convenience  of  reference  to  said  franchises 
and  for  another  reason  which  will  appear  later  in  this 
opinion. 

Ten  of  the  said  sixteen  franchises  mentioned  con- 
tain a  statement  that  the  said  consent  is  given  on  the 
following  express  conditions,  to  wit:  **  That  the  pro- 
visions of  article  IV  of  the  Railroad  Law  pertinent 
thereto  shall  be  complied  with,*'  which  said  ten  fran- 
chises will  be  hereinafter  referred  to  as  "  C  *'  fran- 
chises for  convenience  of  reference  thereto  and  for 
another  reason  which  will  hereinafter  appear. 

Chapter  252  of  the  Laws  of  1884,  which  was  an  act 
to  provide  for  the  construction,  extension,  mainte- 
nance and  operation  of  street  surface  railroads  and 
branches  thereof  in  cities,  towns  and  villages,  pro- 
vided in  section  13  thereof  that  **  No  company  or 
corporation  incorporated  under,  or  constructing  and 
Operating  a  railroad  *  •  *  shall  charge  any 
passenger  more  than  five  cents  for  one  continuous 
ride  *  *  *'^  and  section  4  of  said  act  provided 
''  The  consent  of  the  local  authorities  shall  in  all  cases 
be  applied  for  in  writing,  and  when  granted  shall  be 
upon  the  express  condition  that  the  provisions  of  this 
act  pertinent  thereto  shall  be  complied  with,  and  shall 
be  filed  in  the  office  of  the  county  clerk  of  the  county 
in  which  said  railroad  is  located."  Section  19  of  said 
act  provides,  **  The  legislature  may  at  any  time  alter, 
amend  or  repeal  this  act." 

Chapter  65  of  the  Laws  of  1886  (which  went  into 
effect  March  22,  1886,  before  any  of  the  franchises 
herein  were  granted)   amended  chapter  252  of  the 


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340    Matter  of  O'Connor  v.  Pub.  Serv.  Comm. 

Supreme  Court,  February,  1921.  [Vol.  114. 

Laws  of  1884  by  the  inclusion  of  a  provision  to  the 
effect  that:  **  The  Legislature  expressly  reserves  the 
right  to  regulate  and  reduce  the  rate  of  fare  on  such 
railroad  or  railway ;''  and  afterwards,  the  General 
Railroad  Law  (Laws  of  1890,  chapter  565),  by  section 
101  provided:  **  The  legislature  expressly  reserves  the 
right  to  regulate  and  reduce  the  rate  of  fare  on  any 
railroad  constructed  and  operated  wholly  or  in  part 
under  such  chapter  (chapter  252,  Laws  of  1884)  or 
under  the  provisions  of  this  article." 

Section  5,  subdivision  3  of  the  Public  Service  Com- 
missions Law  provides:  "3.  All  jurisdiction,  super- 
vision, powers  and  duties  under  this  chapter  hot 
specifically  granted  to  the  public  service  commission 
of  the  first  district  shall  be  vested  in,  and  be  exercised 
by,  the  public  service  commission  of  the  second 
district,  including  the  regulation  and  control  of  all 
transportation  of  persons  or  property,  and  the  in- 
strumentalities connected  with  such  transportation, 
on  any  railroad  other  than  a  street  railroad  from  a 
point  within  either  district  to  a  point  within  the  other 
district.'' 

Section  181  of  the  Railroad  Law  (Cons.  Laws,  chap. 
49),  so  far  as  material  here,  is  as  follows:  **  No  cor- 
poration constructing  and  operating  a  railroad  under 
the  provisions  of  this  article,  or  of  chapter  two  hun- 
dred and  fifty-two  of  the  laws  of  eighteen  hundred 
and  eighty-four,  shall  charge  any  passenger  more  than 
five  cents  for  one  continuous  ride  from  any  point  on 
its  road,  or  on  any  road,  line  or  branch  operated  by 
it,  or  under  its  control,  to  any  other  point  thereof,  or 
any  connecting  branch  thereof,  within  the  limits  of 
any  incorporated  city  or  village.  •  •  *  The  legis- 
lature expressly  reserves  the  right  to  regulate  and 
reduce  the  rate  of  fare  on  any  railroad  constructed 
and  operated  wholly  or  in  part  under  such  chapter 


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Matter  of  O'Connor  v.  Pub.  Sbrv.  Comm.    341 

Misc.]  Supreme  Courts  February,  1921. 

or  under  the  provisions  of  this  article ;  and  the  public 
service  commission  shall  possess  the  same  power,  to 
be  exercised  as  prescribed  in  the  public  service  com- 
missions law." 

Subdivision  1  of  section  49  of  the  Public  Service 
Commissions  Law  is  in  part  as  follows : 

'*  ^  49.  Bates  and  service  to  be  fixed  by  the  com- 
mission. 1.  Whenever  either  commission  shall  be  of 
the  opinion,  after  a  hearing  had  upon  its  own  motion 
or  upon  a  complaint,  that  the  rates,  fares  or  charges 
demanded,  exacted,  charged  or  collected  by  any  com- 
mon carrier,  railroad  corporation  or  street  railroad 
corporation  subject  to  its  jurisdiction  for  the  trans- 
portiation  of  persons  or  property  within  the  state,  or 
that  the  regulations  or  practices  of  such  common 
carrier,  railroad  corporation  or  street  railroad 
corporation  affecting  such  rates  are  unjust,  unreason- 
able, unjustly  discriminatory  or  unduly  preferential, 
or  in  any  wise  in  violation  of  any  provision  of  law, 
or  that  the  maximum  rates,  fares  or  charges,  charge- 
able by  any  such  common  carrier,  railroad  or  street 
railroad  corporation  are  insufficient  to  yield  reason- 
able compensation  for  the  service  rendered,  and  are 
unjust  and  unreasonable,  the  commission  shall  with 
due  regard  among  other  things  to  a  reasonable  average 
return  upon  the  value  of  the  property  actually  used 
in  the  public  service  and  to  the  necessity  of  making 
reservation  out  of  income  for  surplus  and  con- 
tingencies, determine  the  just  and  reasonable  rates, 
fares  and  charges  to  be  thereafter  observed  and  in 
force  as  the  maximum  to  be  charged  for  the  service 
to  be  performed,  notwithstanding  that  a  higher  rate, 
fare  or  charge  has  been  heretofore  authorized  by 
statute,  and  shall  fix  the  same  by  order  to  be  served 
lipon  all  common  carriers,  railroad  corporations,  or 


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342    Mattbb  of  O'Connor  v.  Pub.  Sbrv.  Comm. 

Supreme  Court,  February,  1921.  [Vol.  114. 

street  railroad  corporations  by  whom  such  rates,  fares 
and  charges  are  thereafter  to  be  observed." 

In  Matter  of  International  Railway  Company  v. 
Public  Service  Commission,  226  N.  Y.  479,  the  court 
says:  **  The  power  to  regulate  rates  is  the  power  to 
increase  them  if  inadequate  just  as  truly  as  it  is  the 
power  to  reduce  them  if  excessive."  The  court  say- 
ing, at  page  478:  "  This  is  a  case  where  the  local 
authorities,  in  imposing  a  condition,  have  consented 
that  the  legislature  may  change  it,  and  have  thus 
renounced  the  right  of  forfeiture  or  revocation  that 
might  otherwise  be  theirs.  *  Nothing  in  this  contract 
contained  shall  be  construed  to  prevent  the  legislature 
from  regulating  the  fares  of  said  companies,  or  either 
of  them.^  In  the  light  of  this  provision,  amendment  by 
legislation  must  be  held  to  have  been  as  much  within 
the  contemplation  of  the  parties  as  amendment  by 
agreement,"  and  again  at  page  479:  **  The  situation 
then,  is  this:  Municipality  and  railroad  have  joined 
in  the  declaration  that  the  rate  fixed  by  their  agree- 
ment shall  be,  not  final,  but  provisional.  It  is  to  be 
subject,  in  case  of  need,  to  re-examination  and  readjust- 
ment by  the  agents  of  the  state.  The  need  that  was 
foreseen  as  possible,  has  arisen.  In  upholding  the 
jurisdiction  of  the  conunission  to  deal  with  it,  we  do 
not  override  the  conditions  of  the  franchise.  We  heed 
and  enforce  thenL  There  are  times  when  the  police 
power  modifies  a  contract  in  spite  of  the  intention  of 
those  who  have  contracted.  Here  its  action  is  in  aid 
of  their  intention.  The  covenant  which  limits  rates 
is  a  condition  of  the  consent,  but  only  in  equal  measure 
with  the  covenant  preserving  and  defining  the  power 
of  amendment.  So  far  as  the  power  of  the  conunis- 
sion is  concerned,  the  result  is  the  same  as  if  no  condi- 
tion had  been  imposed  at  all." 

All  of  the  *^  B  "  franchises  were  granted  between 


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Matter  of  O'Connor  v.  Pub.  Sbbv.  Coii« 

Misc.]  .    Supreme  Court,  February,  1921. 

May  6,  1886,  and  October  11,  1889;  while  tl 
franchises  were  all  granted  between  the  4tl] 
October,  1895,  and  January  18,  1907.    So  tha 
franchises   **B''  and  **  C  "  were  granted 
January  1, 1875,  and  July  1, 1907. 

In  People  ex  rel.  Garrison  v.  Nixon,  229  N. 
586,  Crane  J.,  in  a  dissenting  opinion,  says:  ** 
think  this  right  of  the  public  service  commi 
regulate  fares  rests  upon  that  clause  of  the  f r 
making  the  Railroad  Law  (Consol.  Laws,  C.  4J 
thereof.  The  franchises  are  granted  upon  c 
that  the  railroad  shall  comply  with  the  provi 
the  Bailroad  Law  which  includes  section  If 
referred  to.  The  franchises  in  the  Qmnhy  c 
contain  a  similar  provision.  They  were  con 
upon  compliance  with  article  4,  chapter  39  of 
eral  Laws  of  the  state  of  New  York  of  1892.  ' 
contained  section  101  which  later  became  sec 
of  the  Bailroad  Law.  As  above  stated,  sec 
reserved  the  right  in  the  legislature  to  regula 
In  deciding  the  Quinhy  case  we  did  not  cons: 
of  sufficient  importance  to  control  our  decisi< 

The  franchises  in  Matter  of  Quinhy  v.  Pith 
ice  Commission,  223  N.  Y.  244,  and  in  Mattel 
of  Niagara  Falls,  229  id.  333,  besides  the  pi 
required  by  chapter  252  of  the  Laws  of  1 
section  101  of  the  Bailroad  Law,  contained  a 
provision  limiting  the  rate  of  fare  to  be  chc 
the  sum  of  five  cents. 

In  People  ex  rel.  Garrison  v.  Nixon,  supra,  t 
of  Appeals  in  a  per  curiam  opinion,  amoi 
things  say:  **  We  think  that  the  following  c] 
franchises  fall  outside  the  scope  of  our  dec: 
Matter  of  Application  of  the  City  of  Niagara 
Public  Service  Commission  of  the  State  of  N 
for  the  Second  District  and  the  International 


Supreme  Court,  February,  1921.  [Vol.  114. 

Company  (decided  herewith),  229  N.  T.  333;  Matter 
of  Qiunhy  v.  Public  Service  Commission,  223  N.  Y.  244. 
•  •  •  4.  The  following  franchises  granted  between 
January  1, 1875  andJuly  1,1907:  (a)  *  •  •.  (b)  The 
franchise  granted  in  and  by  the  consent  of  the  com- 
mon council  of  the  city  of  Brooklyn  to  the  Prospect 
Park  and  Coney  Island  Railroad  dated  December  21, 
1885,  consenting  to  the  construction  of  a  line  on  Park 
avenue  and  other  streets  in  Brooklyn,  (c)  The 
franchise  granted  in  and  by  the  consent  of  the  com- 
mon council  of  the  city  of  Brooklyn  to  the  Nassau 
Electric  Railroad  Company,  dated  June  19,  1893, 
covering  a  number  of  lines  as  therein  stated.^' 

In  the  exception  (b)  above  quoted,  the  franchise 
contains  the  following  condition:  *^  Provided  that  this 
consent  is  granted  upon  the  express  condition  that 
the  provisions  of  chapter  252  of  the  Laws  of  1884,  of 
the  State  of  New  York,  entitled  *An  Act  to  provide 
for  the  construction,  extension,  maintenance  and 
operation  of  street  surface  railroads  and  branches 
thereof  in  cities,  towns  and  villages,'  pertinent  thereto, 
shall  be  complied  with ;  and  shall  be  filed  in  the  office 
of  the  county  clerk  of  the  county  of  Kings ;  provided, 
also,  that  this  consent  is  given  to  said  The  Prospect 
Park  and  Coney  Island  Railroad  Company  subject 
to  all  the  obligations,  liabilities  and  payments  and  all 
the  rights,  Drivileges  and  franchises  provided  for  by 
the  aforesaid  act.'' 

The  language  of  the  franchise  of  the  exception 
**  (b)  "  being  substantially  identical  with  the  language 
of  the  franchises  **  B  "  and  in  the  exception  **  (c)  " 
above  quoted,  the  language  of  the  franchise  is  as 
follows:  **  This  consent  is  granted  upon  the  express 
condition  that  the  provisions  of  Article  IV,  of  Chapter 
565,  of  the  Laws  of  1890,  and  the  Acts  amendatory 
thereof,    shall   be    complied    with.     This    consent   is 


Bebman,  Inc.,  v.  Am.  Fruit  Distributing  Co.    345 

Misc.]  Supreme  Court,  February,  1921. 

granted  subject  to  all  the  obligations  and  liabilities 
and  all  the  rights,  privileges  and  franchises  provided 
for  by  the  aforesaid  Act,"  being  substantially  the 
same  provision  as  contained  in  the  **  C  ''  franchises 
except  that  the  words  **  and  the  Acts  amendatory 
thereof  "  having  been  added  to  the  exception  (c). 

While  the  Court  of  Appeals  in  People  ex  rel.  Oar- 
rison  v.  Nixon,  supra,  only  excepted  three  express  fran- 
chises named  therein,  granted  between  January  1, 
1875,  and  July  1,  1907,  by  a  parity  of  reasoning  it 
must  follow  that  franchises  like  the  *'  B  ''  and  ''  C  " 
franchises  hereinbefore  mentioned  and  which  contain 
no  limitations  except  that  the  said  railway  corporation 
would  obey  the  Bailroad  Law,  including  any  changes 
in  the  rate  of  fare  made  by  the  legislature  or  its  dele- 
gated agent,  the  public  service  commission,  also  fall 
within  the  exceptions  ''  (b)  "  and  ''  (c)  '*  mentioned 
in  People  ex  rel.  Garrison  v.  Nixon,  supra. 

The  motion  for  an  alternative  writ  of  prohibition 
must  be  denied,  with  ten  dollars  costs. 

Motion  denied,  with  ten  dollars  costs. 


B.  Bebman,  Inc.,  Plaintiff,  v.  American  Fbuit  Dis- 
TBiBUTiNG  Company  of  Califobnia,  Defendant. 

(Supreme  Court,  Erie  Special  Term,  February,  1921.) 

Process  —  service  by  pnbUcation  —  where  papers  must  be  mailed 
—  when  motion  to  vacate  judgment  granted  —  Oode  Oiv.  Pro. 
§  440. 

Motions  and  orders  —  when  defendant's  motion  for  order  of  resti- 
tntion  denied  —  attachment  —  foreign  corporations. 

Serrice  of  an  order  of  publication,  together  with  the  sum- 
mons and  complaint,  by  depositing  the  papers,  contained  in  a 
securely  closed  postpaid  wrapper,  in  a  letter-box  other  than 
in  the  post-office,  is  not  good. 


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346    Bbrman,  Inc.,  v.  Am.  Fruit  Distributing  Co. 

Supreme  Court,  February,  1921.  [Vol.  114. 

Where  an  order  for  the  service  of  the  summons  directed  that 
a  copy  of  the  summons  and  complaint  and  order  of  publication, 
contained  in  a  securely  dosed  postpaid  wrapper,  be  deposited 
in  the  post-office  as  required  by  section  440  of  the  Code  of 
Civil  Procedure,  but  upon  application  for  judgment  the  only 
proof  of  mailing  was  an  affidavit  stating  that  the  papers  were 
deposited  in  a  depositary  maintained  by  the  United  States 
government  in  a  privately  owned  building,  the  defect  is  juris- 
dictional and  not  merely  an  irr^ularity,  and  defendant's 
motion  to  vacate  the  judgment  will  be  granted. 

Defendant,  a  foreign  corporation,  which  did  not  appear  in 
the  action,  has  no  property  within  this  state  and  is  not  doing 
business  therein,  delayed  making  the  motion  to  vacate  the  judg- 
ment for  nearly  a  year.  Held,  that  as  in  the  event  of  granting 
defendant's  motion  for  an  order  of  restitution  of  its  property 
taken  by  virtue  of  a  warrant  of  attachment,  plaintiff's  only 
relief  would  be  to  institute  proceedings  in  the  state  of  defend- 
ant's residence,  the  motion  will  be  denied. 

Motion  by  defendant  to  set  aside  judgment  and  for 
order  directing  restitution  of  property  taken  on 
warrant  of  attachment. 

Lawrence  &  Lathrop,  for  motion. 

Walter  C.  Newcomb,  opposed. 

Brown,  J.  The  order  for  service  of  the  summons 
directed  that  **  the  plaintiff  shall  deposit  in  the  post- 
office  at  the  City  of  Buffalo,  County  of  Erie  and  State 
of  New  York  a  copy  of  the  summons  and  complaint 
and  of  this  order,  contained  in  a  securely  closed  post- 
paid wrapper,  directed  to  the  defendant,''  etc.  The 
only  proof  of  such  required  mailing  presented  upon 
application  for  judgment  was  by  affidavit  stating: 
''  That  on  the  23rd  day  of  July,  1919,  deponent 
deposited  in  a  depositary  maintained  by  the  United 
States  Government  in  the  D.  S.  Morgan  Bldg.  in  the 
City  of  Buffalo,  New  York,  a  copy  of  a  summons,  com- 
plaint, affidavits  and  order  for  publication,  copies  of 


Berman,  Inc.,  v.  Am.  Fruit  Distributing  ( 

Mise.]  Supreme  Court,  February,  1921. 

which  are  hereto  annexed,  contained  in  a  seen 
duly  prepaid  wrapper  directed  to  the  def enda 

Section  440  of  the  Code  of  Civil  Procedure  ] 
that  the  order  of  publication  '^  must  also 
*  •  *  a  direction  that,  on  or  before  the  di 
first  publication,  the  plaintiff  deposit  in  a  pc 
branch  post-office  or  post-office  station,  one  - 
sets  of  copies  of  the  summons,  complaint  an 
each  contained  in  a  securely  closed  post-paid  \ 
directed  to  the  defendant,*'  etc. 

In  Kom  V.  Lipman,  201  N.  Y.  404,  it  was  h 
the  mailing  of  a  summons,  complaint  and  or< 
post-office  box  regularly  maintained  by  the 
ment  of  the  United  States  and  under  the  cai 
post-office  authorities  at  the  borough  of  Ma 
city  of  New  York,  which  post-office  box  was 
chute  which  extended  from  one  of  the  uppei 
of  the  Home  Life  Insurance  Building  at 
Broadway,  in  the  borough  of  Manhattan,  city 
York,  to  a  United  States  post-office  box  loc 
the  ground-floor  corridor  of  said  building,  wj 
mailing  of  the  summons,  complaint  and  orde 
post-office.  To  the  same  effect  is  the  holding  i 
Ulrichs,  136  App.  Div.  809,  and  Von  Der  I 
Ditmars,  174  id.  390. 

It  is  urged  by  the  defendant  that  the  provi 
the  statute  authorizing  the  order  of  public; 
direct  a  mailing  at  **a  post-office,  branch  post- 
post-office  station  '*  permits  of  a  mailing  at  th( 
ing  post-office  letter  box  maintained  by  the 
ment  in  the  D.  S.  Morgan  Building;  that  sue 
receiving  box  is  a  post-office  station.  Such 
undoubtedly  does  authorize  such  mailing  at  an 
several  post-office  substations  maintained  in 
of  Buffalo,  but  to  say  that  a  letter  box  in  tl 
Morgan  Building  is  a  post-office  station  overL 


348    Bbrman,  Inc.,  v.  Am.  Fruit  Distributing  Co. 

Supreme  Court,  February,  1921.  [Vol.  114. 

patent  fact  that  the  legislature,  by  sections  797  and 
802  of  the  Code  of  Civil  Procedure,  have  specifically 
provided  that  the  privilege  of  ser\  ing  some  kinds  of 
papers  by  mailing  the  same  in  the  post-office  or  in  any 
post-offico  box  regularly  maintained  by  the  govern- 
ment of  the  United  States  and  under  tiie  care  of  its 
post-office  shall  not  apply  to  the  service  of  a  summons 
or  other  process.  In  Schwartz  v.  Schwartz,  113  Misc. 
Rep.  444,  the  summons  was  mailed  in  a  mail  box  at 
280  Broadway ;  the  learned  justice  saying :  * '  Judicial 
notice  cannot  be  taken  that  this  mail  box  was  one 
authorized  or  maintained  under  the  provisions  of  the 
postal  laws.  The  case  may  be  re-opened  and  the  neces- 
sary proof,  if  it  exists,  supplied."  The  necessarj' 
proofs  referred  to  must  have  been  proof  that  the  mail 
box  at  280  Broadway  was  a  post-office,  branch  post- 
office  or  post-office  station,  for  it  is  only  at  such  places 
that  a  summons,  etc.,  can  be  mailed  under  section  440 
of  the  Code  of  Civil  Procedure.  The  mere  fact  that 
the  box  was  a  mail  box  authorized  or  maintained  under 
the  provisions  of  the  postal  laws  does  not  make  it  a 
post-office,  branch  post-office  or  post-office  station. 

It  may  be  that  the  meaningless  statement  in  the 
alleged  proof  of  mailing,  viz.,  **  contained  in  a  securely 
and  duly  prepaid  wrapper ''  should  be  treated  as  an 
irregularity  and  an  opportunity  be  given  to  prove  that 
the  summons,  etc.,  was  contained  in  a  securely  closed 
post-paid  wrapper ;  but  it  is  clearly  apparent  that  the 
failure  to  prove  that  the  papers  were  mailed  at  a  post- 
office,  branch  post-office  or  post-office  station  is  juris- 
dictional and  not  a  mere  irregularity. 

The  defendant's  motion  to  vacate  and  set  aside  the 
judgment  must  be  granted.  The  proved  fact  that  the 
defendant  is  indebted  unto  the  plaintiflF  in  a  sub- 
stantial sum  not  being  denied,  defendant  not  appear- 
ing in  the  action,  having  no  property  within  the  state, 


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International  Railway  Co.  c.  Pickars] 

Misc.]  Supreme  Court,  February,  1921. 

not  doing  business  within  the  state,  having 
making  this  motion  for  nearly  one  year,  pi 
only  remedy  for  relief  in  the  event  of  an  oi 
restitution  being   to   institute   proceedings    i 
fornia,  such  order  will  not  be  made. 

Ordered  accordingly. 


International  Railway  Company,  Plaintiff,  v 
PiGEARSKi  and  Ella  C.  Heinz,  Defenda 

(Supreme  Court,  Erie  Equity  Term,  February,  Ifl 

Jndfments  —  Joint  tort  feasors  —  when  pa3rment  of  jad 
attorney  not  a  satisfaction  —  assignments  —  eviden 

It  is  only  when  one  of  several  joint  tort  feasor 
debtors  pays  the  judgment  that  it  is  satisfied  as  to  a 

The  mere  fact  that  the  attorney  for  one  of  the 
debtors,  without  the  knowledge  of  his  client,  pays  tl 
of  the  judgment  to  the  judgment  creditor  and  takes 
ment  thereof  to  a  third  person,  is  no  proof  that  the 
was  to  satisfy  the  judgment.  Nor  is  the  fact  that  t 
ment  was  made  for  the  purpose  of  collecting  the  judgi 
the  other  joint  judgment  debtor  proof  that  the  pa^ 
made  in  satisfaction  of  the  judgment. 

A  stranger  may  purchase  a  judgment  without  not: 
party  to  it  and  thus  acquire  all  the  rights  of  the 
creditor. 

The  authority  of  the  attorney  of  an  unsuccessful 
ceases  with  the  entry  of  judgment  against  him. 

While  the  property  of  one  of  two  joint  tort  feasor 
debtors  was  under  a  levy  made  under  an  execution 
the  judgment,  one  who  had  been  his  attorney  in  t 
without  the  knowledge  of  either  of  the  judgment  debt< 
tarily  paid  the  judgment  from  his  own  money,  took 
ment  of  the  judgment  to  his  stenographer,  and  after 
tion  had  been  withdrawn  and  the  levy  released,  he  iss 
execution  on  the  judgment  against  the  property  of 
judgment  debtor.  Held,  that  such  payment  was  nc 
faction  of  the  judgment. 


350    Intebnational  Railway  Co.  v,  Pickarski. 

Supreme  Court,  February,  1921.  [Vol.  114. 

In  the  absence  of  proof  that  the  attorney  acted  for  his 
former  client  or  even  sustained  the  relation  to  him  of  attorney  at 
the  time  of  making  payment,  the  proof  being  that  his  former 
client  made  no  request  that  the  judgment  be  paid,  there  was 
no  presumption  that  said  attorney  acted  in  the  matter  as 
attorney  for  his  former  client,  and  the  complaint  in  an  action 
by  the  other  judgment  debtor,  to  restrain  the  collection  of  the 
judgment,  will  be  dismissed. 

Action  to  restrain  the  collection  of  a  judgment,  etc. 

Penney,  Killeen  &  Nye,  for  plaintiflf. 

Loomis  &  Gibbs,  for  defendants. 

Brown,  J.  On  Jnne  10,  1919,  judgment  was 
entered  in  Erie  county  clerk's  office  in  favor  of  Alex- 
andra Majchrowska  against  plaintiff  and  defendant 
Pickarski  as  joint  tort  feasors  for  the  recovery  of 
damages  incurred  by  Majchrowska  through  the  joint 
negligence  of  the  plaintiff  and  defendant  Pickarski. 
Upon  an  execution  issued  on  the  judgment  the  sheriff 
of  Erie  county  levied  upon  the  property  of  the  defend- 
ant Pickarski  to  satisfy  the  same.  On  July  29,  1919, 
while  the  property  of  the  defendant  Pickarski  was 
subject  to  the  levy,  the  attorney  for  Pickarski,  with- 
out the  knowledge  of  Pickarski,  paid  to  the  plaintiff  in 
the  execution,  Majchrowska,  the  amount  of  the  judg- 
ment, interest  and  costs,  and  induced  Majchrowska  to 
assign  the  judgment  to  the  defendant  Heinz,  who  was 
a  stenographer  in  the  office  of  the  attorney  for  Pick- 
arski. The  money  for  this  payment  was  the  money 
of  the  attorney  and  was  paid  to  Majchrowska  for  the 
twofold  purpose  of  preventing  any  of  the  money 
reaching  the  hands  of  the  attorney  for  Majchrowska 
and  also  for  the  purpose  of  releasing  the  property  of 
Pickarski  from  the  levy  under  the  execution  and  col- 


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International  Railway  Co.  v.  Pickarski.    351 

Misc.]  Supreme  Court,  February,  1921. 

~  ■  *' 

lecting  the  judgment  from  the  plaintiff  railway  com- 
pany, the  joint  tort  feasor  and  judgment  debtor  with 
Pickarski.  After  the  assignment  of  the  judgment  to 
the  defendant  Heinz  the  execution  was  withdrawn  and 
the  property  of  the  defendant  Pickarski  released  from 
the  levy;  thereupon  and  on  August  1,  1919,  the 
attorney  for  Pickarski,  acting  for  the  defendant 
Heinz,  procured  a  new  execution  to  be  issued  upon 
the  judgment  directing  a  levy  to  be  made  thereunder 
upon  the  property  of  the  plaintiff  railway  company, 
for  the  satisfaction  of  the  judgment,  money  realized 
therefrom  to  be  paid  to  the  defendant  Heinz.  In  pur- 
suance of  the  execution  the  sheriff  of  Erie  county 
levied  upon  the  property  of  the  plaintiff  railway  com- 
pany, whereupon  this  action  was  commenced  for 
relief.  The  question  is  whether,  under  the  circum- 
stances, the  payment  of  the  moneys  by  the  attorney 
for  Pickarski  was  a  satisfaction  of  the  judgment. 

The  law  undoubtedly  is  that  the  payment  of  the 
amount  of  the  judgment  by  one  of  two  joint  tort 
feasor  judgment  debtors  to  the  judgment  creditor  is 
a  payment  by  both  joint  tort  feasors  and  satisfies  the 
judgment.  Harbeck  v.  Vanderbilt,  20  N.  Y.  395;  lAllie 
V.  Dannert,  232  Fed.  Repr.  104. 

If  the  attorney  for  Pickarski  had  paid  the  money 
at  the  request  of  Pickarski  the  judgment  undoubtedly 
would  have  been  satisfied.  Gotthelf  v.  Krviewitch, 
153  App.  Div.  746. 

The  attorney  for  Pickarski  voluntarily  paid  the 
amount  of  judgment  without  knowledge  of  either  judg- 
ment debtor  and  took  an  assignment  to  his  stenog- 
rapher. The  fact  of  taking  the  assignment  has  been 
held  to  be  evidence  that  the  money  was  not  paid  in 
satisfaction  of  the  judgment  when  the  payment  is 
made  by  a  stranger  not  a  party  to  the  record.    Dow- 


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352    International  Railway  Co.  v.  Pickarski. 

Supreme  Court,  February,  1921.  [Vol.  114. 

ling  V.  Hastings,  211  N.  Y.  202;  Harbeck  v.  Vander- 
hilt,  20  id.  395. 

There  seems  to  be  no  question  but  that  the  attorney 
for  Majchrowska  could  have  withdrawn  the  execution 
against  Pickarski  and  a  levy  have  been  made  on  that 
execution  upon  the  property  of  the  plaintiff  railway 
company.  It  is  only  when  one  joint  tort  feasor  judg- 
ment debtor  pays  the  amount  of  the  judgment  that  it 
is  satisfied  as  to  all  defendants. 

The  reason  that  such  a  payment  of  money  satisfies 
the  judgment  and  cannot  be  the  basis  of  an  assign- 
ment, even  though  in  fact  an  assignment  be  executed 
and  delivered,  is  that  the  judgment,  being  a  joint 
liability  of  the  judgment  debtors  when  owned  by  the 
judgment  creditor,  ceases  to  be  a  joint  liability  when 
owned  by  one  of  the  joint  judgment  debtors.  A  judg- 
ment debtor  could  not  own  a  judgment  against  himself. 
The  owner  of  the  fee  cannot  purchase,  own  and  keep 
alive  a  mortgage  upon  his  own  land;  the  mortgage 
is  merged  in  the  fee  and  ceases  to  exist  as  a  mortgage. 
The  same  theory  destroys  the  judgment  when  a  judg- 
ment debtor  pays  its  amount  and  has  it  assigned  to 
himself.  As  was  said  in  Harbeck  v.  Vanderbilt,  20 
N.  Y.  397:  **  Where  one  of  several  defendants  against 
whom  there  is  a  joint  judgment,  pays  to  the  other 
party  the  entire  sum  due,  the  judgment  becomes 
thereby  extinguished,  whatever  may  be  the  intent  of 
the  parties  to  the  transaction.  It  is  not  in  their 
power,  by  any  arrangement  between  them,  to  keep  the 
judgment  on  foot  for  the  benefit  of  the  party  making 
the  payment.  If,  therefore,  in  such  a  case,  the  latter 
take  an  assignment  to  himself,  or,  unless  under  special 
circumstances,  even  to  a  third  person  for  his  own  bene- 
fit, the  assignment  is  void  and  the  judgment  satisfied. 
It  is  equally  clear,  that  if  the  money  be  paid,  not  by 
one  who  is  a  party  to  the  judgment  and  liable  upon 


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International  Kailway  Co.  v.  Pickarski.     353 

Misc.]  Supreme  Court,  February,  1921. 

it,  but  by  some  third  person,  the  judgment  will  be 
extinguished  or  not,  according  to  the  intention  of  the 
party  paying.  The  taking  of  an  assignment,  whether 
valid  or  void,  affords  under  all  circumstances,  unequiv- 
ocal evidence  of  an  intention  not  to  satisfy  the  judg- 
ment.'* 

The  mere  fact  that  the  attorney  for  one  of  the  judg- 
ment debtors,  unknown  to  his  client,  pays  the  amount 
of  the  judgment  to  the  judgment  creditor  and  takes 
an  assignment  of  the  judgment  to  a  third  person,  is 
not  proof  that  the  judgment  was  intended  to  be  satis- 
fied ;  nor  does  the  fact  that  the  attorney  for  one  of  the 
judgment  debtors  had  such  an  assignment  made  for 
the  purpose  of  collecting  the  judgment  from  the  other 
judgment  debtor  prove  that  the  payment  was  made  in 
satisfaction  of  the  judgment. 

A  finding  cannot  be  made  on  the  record  that  it  was 
intended  by  the  attorney  for  Pickarski  that  the  judg- 
ment would  be  satisfied  by  his  payment  to  Majchrow- 
ska.  It  has  long  been  the  law  that  a  stranger  may 
purchase  a  judgment  without  notice  to  any  party  to 
it,  and  thus  acquire  all  the  rights  of  the  judgment 
creditor. 

The  authority  of  an  attorney  for  an  unsuccessful 
defendant  ceases  with  the  entry  of  judgment  against 
him.  Dusk  v.  Hastings,  1  Hill,  656;  Cruikshank  v. 
Goodwin,  20  N.  Y.  Supp.  757;  Davis  v.  Solomon,  25 
Misc.  Rep.  695.  With  no  proof  that  the  attorney  who 
had  acted  for  Pickarski  up  to  the  time  of  the  entry  of 
the  joint  judgment,  acted  as  attorney  for  Pickarski 
or  even  sustained  the  relation  of  attorney  to  him  at 
the  time  of  making  the  payment,  and  with  the  unchal- 
lenged direct  evidence  that  Pickarski  furnished  no 
part  of  the  money,  made  no  request  that  such  money 
be  paid  and  had  no  knowledge  of  the  transaction,  the 
presumption  that  such  attorney  acted  as  attorney  of 
23 


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354  SCHUBACH  V.  KOKSHNEB. 


Supreme  Court,  February,  1921.  [Vol.  114. 


Pickarski  cannot  be  indulged  in.  Upon  the  proofs 
presented,  the  inference  that  the  attorney  was  not  a 
stranger  to  the  judgment  at  the  time  he  paid  the 
money  and  took  the  assignment  does  not  arise.  The 
defendants  must  have  judgment  dismissing  the  com- 
plaint. 


Judgment  for  defendants. 


JosBPH   ScHUBACH,   Plaintiff,  v.  Pinkus  Konshneb, 

Defendant. 

(Supreme  Court,  Erie  Equity  Term,  February,  1921.) 

Statute  of  Franda  —  sale  of  real  eatato  —  insuffident  memorandum 
—  contracts  —  apeciilc  performance  —  when  complaint  dia- 
misaed. 

Where  by  an  oral  contraet  for  the  purchase  of  real  estate 
it  was  agreed  that  the  balance  of  the  purchase  price,  after 
certain  cash  payments,  should  be  paid  by  plaintiff  assuming  an 
existing  mortgage  on  the  property  and  giving  a  mortgage  for 
the  difference,  a  writing  which  while  acknowledging  receipt  of 
the  cash  payment,  did  not  specify  the  terms  of  the  mortgage 
to  be  given,  how  long  it  was  to  run  or  the  rate  of  interest,  is 
an  insufficient  memorandum  under  the  Statute  of  Frauds  and 
the  complaint  in  an  action  for  specific  performance  of  the 
contract  will  be  dismissed,  but  without  costs. 

Action  for  specific  performance. 

Corcoran  &  Corcoran,  for  plaintiff. 

Leo  P.  Donnelly,  for  defendant. 

Wheeler,  J.  This  action  is  brought  to  enforce 
.specific  performance  of  a  contract  for  the  sale  of 
certain  premisos  known  as  906  Sycamore  street  in  the 


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SCHUBACH  V.  KONSHNBB.  355 

Misc.]  Supreme  Court,  February,  1921. 

city  of  Buffalo,  N.  Y.  After  some  negotiations  the 
plaintiff  paid  the  defendant  $100  on  account  of  the 
purchase  price  of  the  property,  and  the  defendant 
gave  the  plaintiff  the  following  written  receipt: 

''  Buffalo,  N.  Y.,  Nov.  28, 1918. 

**  Received  of  Joseph  Schubach  One  hundred  Dollars, 
deposit  on  property  906  Sycamore  Street,  Purchase 
price  $5,500  payable  as  follows:  $900  or  more  April 
1,  1920,  and  mortgage  given  and  assuming  for  $4,500. 

**$100.  PiNKus  Konshner/' 

The  defendant  Konshner  shortly  after  left  the  $100 
paid  at  the  plaintiff's  house  and  refused  to  convey 
the  property.  The  action  is  to  compel  specific  per- 
formance. The  principal  defense  is  that  the  contract 
does  not  comply  with  the  requirements  of  the  Statute 
of  Frauds. 

Section  259  of  the  Real  Property  Law  of  the  state 
reads : 

''  When  contract  to  lease  or  sell  void  —  A  contract 
for  the  leasing  for  a  longer  period  than  one  year,  or 
for  the  sale,  of  any  real  property,  or  an  interest 
therein,  is  void,  unless  the  contract,  or  some  note  or 
memorandum  thereof,  expressing  the  consideration, 
is  in  writing,  subscribed  by  the  lessor  or  grantor,  or 
by  his  lawfully  authorized  agents." 

To  entitle  a  party  to  the  specific  performance  of 
a  contract,  '^  a  note  or  memorandum,  sufficient  to  take 
a  contract  of  sale  out  of  the  operation  of  the  Statute  of 
Frauds,  must  state  the  whole  contract  with  reason- 
able certainty  so  that  the  substance  thereof  may  be 
made  to  appear  from  the  writing  itself  without 
recourse  to  parol  evidence.**  Mentz  v.  Newwitter,  122 
N.  Y.  491. 

The  receipt  given  by  the  defendant  seems  to  be  suf- 
ficiently definite  and  certain  to  meet  all  the  require- 


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356  SCHUBACH  V.  KONSHNEB. 


Supreme  Court,  February,  1921.  [Vol.  114. 

ments  of  the  rule  stated  save  in  one  particular.  The 
price  is  specified,  $5,500,  the  names  of  the  parties 
given,  the  property  described,  and  the  date  of  closing 
the  deal  given.  It  will  be  noted,  however,  that  the  cash 
payment  was  to  be  $1,000,  the  $100  paid  November  28, 
1918,  and  the  $900  to  be  paid  April  1,  1920.  The 
balance  of  the  purchase  price,  $4,500,  was  to  be  made 
up  by  assuming  an  existing  niortgage  on  the  prop- 
erty, and  by  giving  a  further  mortgage  for  the  dif- 
ference. It  appeared  from  evidence  given  on  the 
trial  that  the  mortgage  to  be  given  would  amount  to 
a  considerable  sum.  The  memorandum  or  receipt 
signed  by  the  defendant  does  not  specify  the  terms  of 
such  mortgage,  how  long  it  was  to  run,  or  the  rate  of 
interest  it  should  bear.  As  to  the  rate  of  interest 
probably  the  law  would  presume  the  parties  con- 
templated the  legal  statutory  rate.  However,  as  to  the 
time  for  which  such  mortgage  should  run  and  the 
terms  of  payment  of  interest  the  memorandum  is 
silent.  There  was  no  evidence  given  on  the  trial  as 
to  anything  said  between  the  parties  on  that  subject, 
although  under  the  rule  such  parol  proof  would  have 
been  inadmissible. 

Under  the  general  rule  governing  cases  of  this  kind 
we  think  the  memorandum  relied  on  is  insufficient  to 
entitle  the  plaintiff  to  specific  performance.  It  is  too 
indefinite  and  uncertain  in  the  particulars  pointed  out 
to  sustain  this  action.  In  the  case  of  Milliman  v.  Hunt- 
ington, 68  Hun,  258,  the  action  was  one  for  specific 
performance.  The  memorandum  relied  on  in  that  case 
provided  a  part  of  the  purchase  price  was  to  "be 
secured  by  bond  and  mortgage  of  not  less  than  three 
years  duration.^ ^  The  court  held  the  contract  too 
indefinite  to  be  specifically  enforced.  The  court  said 
the  contract  must  **  be  certain  and  definite  in  all  its 
material  provisions,"  citing  Wright  v.  Weeks,  25  N. 


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Kank  Realty  Co.  v.  Brown, 

Misc.]  County  Court,  Saratoga  County,  February 

T.  153 ;  Btickmorster  v.  Thompson,  36  id.  558 
V.  Millery  58  id.  192;  Brown  v.  N.  Y.  C.  R.  . 
id.  79;  Drake  v.  Seaman,  97  id.  230. 

In  the  case  of  Wright  v.  Weeks,  25  N.  Y 
memorandum  signed  by  the  owner  provide 
sale  of  certain  property  ^^upon  the  terms  as  s 
These  terms  were  shown  by  parol  to  have 
tain  cash  payments,  and  the  assumption  of 
ing  mortgage,  but  the  court  held  the  agreemi 
tive  under  the  Statute  of  Frauds. 

The  court  cannot  make  a  contract  for  th( 
"We  therefore  find  in  this  case  the  plainti 
entitled  to  recover.  Under  the  circumstaTices, 
we  think  the  complaint  should  be  dismissed 
costs. 

Ordered  accordingly. 


Ejlnk  Realty  Company,  Plaintiff,  v.  Bernare 

Defendant. 

(County  Court,  Saratoga  County,  February,  192 

Adjoining  land  ownem  —  falling  branch  of  tree  —  when 
trespass  will  not  lie. 

Where  during  a  storm  of  unusual  violence  one  of 
of  a  tree  on  defendant's  land  was  so  broken  that  it 
plaintiff's  land,  the  mere  fact  that  defendant's 
experienced  man,  went  upon  plaintiff's  land  and  in  £ 
in  a  proper  manner  to  remove  the  limb,  which  as  a 
his  weight  and  movements  in  the  tree  hud  fallen  uf 
tiff's  house,  doing  damage,  does  not  constitute  an 
trespass,  and  defendant's  motion  for  a  dismissal  of 
plaint  will  be  granted. 

Action  in  trespass. 

John  A.  Slade,  for  plaintiff. 

Harold  H.  Corbin,  for  defendant. 


358  Kank  Realty  Co.  v.  Brown, 

County  Court,  Saratoga  County,  February,  1921.       [Vol.114. 

McKelvey,  J.  The  parties  aie  the  owners  of 
adjoining  premises  at  Saratoga  Springs,  upon  each 
of  which  there  is  erected  a  dwelling  house.  A  tree  of 
medium  size  stood  on  the  defendant's  lands  near  the 
boundary.  A  wind  storm  of  unusual  violence  broke 
one  of  the  limbs  of  the  tree  so  that  it  overhung  the 
plaintiff's  premises  and  menaced  his  dwelling.  A 
short  time  thereafter  the  defendant  employed  an 
experienced  man  to  remove  the  limb.  When  the  man 
went  into  the  tree  with  his  ropes  and  other  appli- 
ances the  limb,  already  weakened,  fell  as  the  result 
of  his  weight  and  his  movements.  Striking  the  plain- 
tiff's house  it  caused  damages,  the  amount  of  which 
the  jury  have  estimated  by  a  special  finding  which  is 
not  questioned. 

The  plaintiff  sues  in  trespass,  there  being  neither 
proof  nor  allegation  of  negligence.  Moreover,  the 
defendant's  agent,  sworn  by  plaintiff,  teetified  that 
what  he  did  was  necessary  and  proper,  and  was  done 
in  a  proper  manner. 

The  question  is,  then,  whether  the  mere  fact  that 
an  agent  of  defendant  went  upon  plaintiff's  lands, 
and  in  doing  a  proper  act  in  a  proper  manner,  caused 
damage,  constitutes  an  actionable  trespass.  I  call  it 
a  proper  act  because,  with  the  limb  thus  menacing  his 
neighbor's  dwelling,  it  was  his  moral  duty  to  remove 
the  menace,  regardless  of  whether,  in  strict  legal 
theory,  it  was  or  was  not  his  legal  obligation.  This 
question,  thus  presented  upon  a  remarkably  simple 
state  of  facts,  has  been  somewhat  disturbing  both  to 
court  and  counsel,  and  I  was  in  such  doubt  upon  tii 
trial  that  I  deemed  it  the  better  practice  to  reserve 
decision  upon  the  defendant's  motion  for  dismissal, 
pending  the  determination  by  the  jury  of  the  amount 
of  damages,  and  also  of  the  question  whether  the  limb 
did  in  fact  fall  by  reason  of  the  act  of  defendant's 


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Kank  Realty  Co.  v.  Brown. 

Misc.]  Connty  Coort,  Saratoga  County,  February, 

agent.  The  findings  of  the  jury  that  th«  fall  of 
was  due  to  an  act  of  defendant's  agent,  am 
to  the  amount  of  damages,  are  unchallenged 
parties. 

The  determination  of  this  question  depends 
in  my  opinion,  upon  whether  there  was  or  ^ 
trespass,  within  the  meaning  of  the  rules  wi 
been  applied  to  that  form  of  action  from  tin 
morial;  and  a  careful  examination  of  a  numb 
cases  cited  on  both  sides  leads  me  to  the  c( 
that  an  actionable  trespass,  such  as  would  c 
right  to  damages,  must  necessarily  presupi 
involve  a  wrongful  or  unjustifiable  entry  i 
lands  of  another;  or  the  performance  of  £ 
proper,  careless,  wrongful  or  unnecessary  act 

An  act  done  in  good  faith,  in  a  careful  an 
manner,  and  in  the  performance  of  a  legal  < 
duty,  does  not,  in  my  opinion,  constitute  sue 
pass.  In  this  holding  I  believe  I  am  supports 
more  authoritative  cases,  and  I  feel  that  the 
of  Judge  Earl  in  Losee  v.  Buchanan,  51  N.  Y. 
not  only  illustrates  the  distinction  very  cle 
covers  the  present  case  in  apt  and  concig 
Speaking  of  the  general  rule  of  trespass  th< 
judge  said:  **  The  rule,  as  thus  announced,  1 
exceptions,  even  when  one  makes  a  persoi 
upon  the  lands  of  another.  I  may  enter  my  n 
close  to  succor  his  beast  whose  life  is  in  d^ 
prevent  his  beasts  from  being  stolen  or  to  pi 
grain  from  being  consumed  or  spoiled  by  i 
to  carry  away  my  tree  which  has  been  bio 
upon  his  land,  or  to  pick  up  my  apples  wl 
fallen  from  my  tree  upon  his  land,  or  to  takt 
sonal  property  which  another  has  wrongfn 
and  placed  there,  or  to  escape  from  one  who 
my  life.*' 


360  Kank  Reax.ty  Co.  v.  Brown. 

County  Court,  Saratoga  County,  February,  1921.       [Vol.114. 

This  appeals  to  me  as  a  fair  statement  of  the  rule, 
for  all  the  purposes  of  the  case  at  bar.  It  accords 
with  the  justice  and  equity  of  the  present  situation, 
and  its  application  will  prevent  what  would  otherwise 
result  in  a  palpable  injustice. 

So  far  as  this  proof  goes,  the  tree  was  not  dangerous 
before  the  storm  —  it  became  a  menace  to  plaintiff's 
property  by  reason  of  an  act  of  God,  and  without  the 
intervention  or  fault  of  defendant.  Finding  it  thus  a 
menace  to  his  neighbor's  home,  the  defendant,  with 
reasonable  diligence  and  prudence,  and  through  the 
medium  of  an  experienced  agent  exercising  due  care, 
attempted  to  remove  it  in  the  usual  way  and  in  a  care- 
ful manner.  Its  fall  is  not  claimed  to  have  been  due 
to  negligence  or  want  of  care. 

If  I  am  correct  in  my  conception  of  an  actionable 
trespass,  and  unless  it  can  be  held  that  every  entry 
upon  another's  lands,  for  purpose  right  or  wrong,  and 
with  method  good  or  bad,  must  impose  liability  for 
damages  for  any  and  all  accidental  occurrences,  I 
think  that  there  can  be  no  basis  for  recovery  in  the 
case  at  bar.  Had  the  plaintiff  alleged  and  proven 
negligence  of  any  kind,  or  in  any  respect,  then,  con- 
fessedly, the  rule  would  be  otherwise;  but  this  is 
plainly  and  definitely  an  action  for  trespass,  and 
nothing  more. 

I  therefore  grant  the  defendant's  motion  for  the  dis- 
missal of  the  complaint,  upon  which  decision  was 
reserved  pending  the  answer  of  the  jury  to  the  special 
questions  submitted. 

Ordered  accordingly. 


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Matteb  of  KoiiB. 


Misc.]         Surrogate's  Court,  BroDX  County,  Februar 


Matter   of   the   Transfer   Tax   upon   the 
C.  GoTTLOB  KoLB,  Deceased. 

(Surrogate's  Court,  Bronx  County,  February,  :     ! 

Transfer   tax  —  what   not   mibject   to  —  statutes — t 
davits  — Tax  Law,  §  221(b)— Oode  Oiy.  Pro.  §     ! 

The  statute  imposing  a  transfer  tax,  being  a     [ 
law,  will  be  construed  strictly  against  the  state  ax 
to  the  taxpayer  to  the  end  that  he  may  not  be      I 
special  burdens  without  clear  warrant  of  law. 

Where  the  appraiser  in  fixing  a  transfer  tax  i 
savings  bank  account  standing  in  decedent's  name  i 
his  daughter,  but  the  proof  embodied  in  an  affic  i 
daughter  is  that  the  moneys  in  said  account  wei 
derived  from  gifts  to  her  from  various  persons,  ai 
by  her  to  decedent  who  deposited  them  in  the  tn  I 
and  that  the  only  withdrawal  therefrom  was  made  ; 
her  request  and  the  money  delivered  to  and  used  \ 
account  should  not  have  been  included  in  the  apprai  i 
as  subject  to  a  transfer  tax. 

A  contention  that  section  829  of  the  Code  of  Civil 
applies  to  the  affidavit  made  by  the  daughter  is  unti 
while  the  fact  that  the  affidavit  is  self  serving  mi 
sidered  in  deciding  what  weight  should  be  given  to  i1 
is  not  warranted  in  disregarding  it  particularly  as 
stand  uncontradicted  and  unimpeached. 

Only  such  transfers  of  investments  as  are  taxi 
article  10  of  the  Tax  Law  become  liable  to  taxa 
section  221(b)  of  the  Tax  Law,  which  was  in  force  i 
of  decedent's  death,  but  before  the  tax  thereunder  ; 
the  value  of  the  transfer  should  be  ascertained  by 
from  the  value  of  the  investments  so  much  of  the  d 
chargeable  against  them. 

In  appraising  the  fair  market  value  of  the  transi 
investments  at  the  time  of  decedent's  death,  the  accn 
thereon  to  that  date  must  be  included* 

Proceedings  on  appeal  from  order  fixing 
tax. 


362  Matteb  of  Kolb. 


Surrogate's  Court,  Bronx  County,  February,  1921.       [Vol.  114. 

Ehrich,  Wheeler  &  Walter  (William  C,  Stone,  of 
counsel),  for  appellant. 

John  A.  Boyle,  Jr.,  for  state  comptroller. 

ScHXTLz,  S.  The  executors  of  the  last  will  and 
testament  of  the  decedent  appeal  from  the  report  of 
the  transfer  tax  appraiser  and  the  order  entered 
thereon  in  this  proceeding. 

The  first  ground  of  error  asserted  is  that  in  fixing 
the  tax  there  was  included  an  account  in  the  Bowery 
Savings  Bank  in  form  as  follows:  '^  Christian  G. 
Kolb,  in  trust  for  Marie  E.  D.  Kolb,  daughter.''  This 
account  amounted  with  interest  to  the  sum  of  $2,417.51. 
It  is  contended  that  the  moneys  evidenced  thereby 
were  the  property  of  the  said  daughter  before  the 
death  of  the  decedent  and  form  no  part  of  his  estate 
and  that  the  trust  which  the  form  of  the  account  evi- 
denced was  irrevocable. 

The  daughter  of  the  decedent  named  in  the  account 
submitted  an  aflSdavit  in  which  she  set  forth  that  the 
moneys  deposited  therein  were  her  own  moneys 
derived  from  gifts  made  to  her  by  various  persons  and 
entrusted  by  her  to  her  father,  the  decedent,  who 
deposited  the  same  in  the  said  account  and  that  the 
only  withdrawal  was  made  by  her  father  in  the  year 
1917  at  her  request  in  the  sum  of  $400,  and  was 
delivered  to  and  used  by  her.  So  far  as  the  record  dis- 
closes, the  appraiser  did  not  require  the  deponent  to 
appear  and  be  examined  nor  was  any  other  witness 
interrogated. 

The  form  of  the  account  standing  alone  establishes 
a  tentative  trust  revocable  at  will,  until  the  depositor 
died  or  completed  the  gift  in  his  lifetime  by  some 
unequivocal  act  or  declaration,  such  as  the  delivery  of 
the  pass  book  or  notice  to  the  beneficiary.    Matter  of 


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Matter  of  Kolb.  363 


M^sc]         Surrogate's  Court,  Bronx  County,  February,  1921. 


Totten,  179  N.  Y.  112 ;  Matthews  v.  Brooklyn  Savings 
Bank,  208  id.  508. 

In  this  matter  we  have  nothing  but  the  presumption 
which  the  form  of  the  account  raises,  on  the  one  side, 
and  on  the  other,  the  aflBdavit  in  question  which,  if  it 
truthfully  states  the  facts,  rebuts  the  presumption, 
shows  that  the  moneys  deposited  were  in  fact  the  prop- 
erty of  the  daughter  and  would  lead  to  the  conclusion 
that  the  account  should  not  have  been  included  for 
purposes  of  taxation.  See  cases  cited  in  Matter  of 
Klein,  92  Misc.  Rep.  318. 

I  find  no  support  in  the  authorities  for  the  conten- 
tion that  section  829  of  the  Code  applies  to  the  aflBdavit 
in  question.  The  same  are  to  the  contrary  {Matter 
of  Gould,  19  App.  Div.  352;  156  N.  Y.  423;  Matter  of 
Brundage,  31  App.  Div.  348;  Matter  of  Bentley,  31 
Misc.  Rep.  656),  and  while  the  affidavit  is  self-serving 
which  fact  must  be  considered  in  deciding  what  weight 
shall  be  given  to  it,  and  must  be  received  with  caution, 
that  of  itself  does  not  warrant  me  in  disregarding  it. 
Matter  of  McGUlicuddy,  194  App.  Div.  28.  In  view  of 
the  fact  that  the  aflSdavit  was  received,  the  deponent 
not  subjected  to  an  examination  or  cross-examination 
and  that  its  recitals  stand  uncontradicted  and  unim- 
peached,  I  reach  the  conclusion  that  the  account  in 
question  should  not  have  been  included  for  purposes 
of  taxation.  The  law  imposing  the  tax,  being  a  special 
tax  law,  must  be  construed  strictly  against  the  govern- 
ment and  favorably  to  the  taxpayer,  so  that  the  latter 
may  not  be  subjected  to  special  burdens  without  clear 
warrant  of  law.  Matter  of  Vassar,  127  N.  Y.  1,  12. 
When  there  is  any  doubt  as  to  whether  a  tax  is  to  be 
levied  or  not,  it  should  be  resolved  against  the  state. 
Matter  of  Wiemann's  Estate,  179  N.  Y.  Supp.  190. 

Another  ground  of  appeal  is  that  a  tax  was  fixed 
upon  some  investments  pursuant  to  the  provisions  of 


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364  Matter  of  Kolb. 


Surrogate's  Court,  Bronx  County,  February,  1921.       [Vol.  114. 

section  221-b  of  the  Tax  Law  (Cons.  Laws,  chap.  60, 
as  amd.  by  Laws  of  1917,  chap.  700,  §  2),  which 
section  is  claimed  to  have  been  in  violation  of  the  Con- 
stitution of  the  United  States  and  that  of  the  state  of 
New  York. 

Since  the  argument  of  the  matter,  however,  the 
United  States  Supreme  Court  has  rendered  its  opinion 
in  Matter  of  Watson,  N.  Y.  L.  J.,  Dec.  11,  1920,  to  the 
eflFect  that  the  statute  in  question  violated  neither  the 
state  nor  the  federal  Constitution.  In  the  brief  of  the 
appellants  it  was  conceded  that  a  decision  in  that 
matter  would  dispose  of  the  constitutional  question 
raised  by  them  on  this  appeal. 

It  is  further  claimed  by  the  appellants  that  it  was 
error  to  fix  the  amount  of  said  tax  under  section  221-b 
of  the  Tax  Law,  supra,  without  deducting  from  the 
value  of  the  investments  subject  to  such  tax  a  pro- 
portionate amount  of  the  debts  and  other  charges  paid 
by  the  executors,  and  further  that  under  the  section  in 
question,  accrued  interest  should  not  have  been 
included  in  determining  the  value  of  the  investments. 

Section  221-b,  since  repealed  by  chapter  644  of  the 
Laws  of  1920,  was  in  force  upon  the  date  of  the  dece- 
dent *s  death  and  provided  so  far  as  material  to  the 
question  involved,  that:  '*  Upon  every  transfer  of  an 
investment,  as  defined  in  article  fifteen  of  this  chapter, 
taxable  under  this  article,  a  tax  is  hereby  imposed,  in 
addition  to  the  tax  imposed  by  section  two  hundred 
and  twenty-one-a,  of  five  per  centum  of  the  appraised 
inventory  value  of  such  investment,     *     *     *.*' 

The  report  of  the  appraiser  fixes  the  gross  value  of 
the  estate  of  the  decedent  at  $323,940.44;  the  deduc- 
tions at  $43,672.44  and  the  net  estate  at  $280,268.  In 
the  gross  estate  are  contained  investments  taxable 
under  the  section  stated  which  the  appraiser  has 
valued  at  the  sum  of  $161,029.47,  so  that  it  is  evident 


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Matter  of  Kolb.  365 


Misc.]         Surrogate's  Court,  Bronx  County,  February,  1921. 

that  the  securities  bear  the  same  proportion  of  the 
deduction  which  the  value  of  such  securities  bear  to 
the  value  of  the  gross  estate  which  is  forty-nine  and 
seven-tenths  per  cent  thereof  or  in  value  $21,705.20. 
It  is  claimed  that  the  appraiser  was  in  error  in  failing 
to  deduct  said  amount  from  the  value  of  said  securities 
before  imposing  the  tax  of  five  per  cent  under  section 
221-b. 

The  question  to  be  considered  has  been  the  subject 
of  an  opinion  by  the  comptroller  of  the  state  of  New 
York,  reported  in  14  State  Department  Beports,  535, 
in  which  he  states  that  the  language  of  the  section  pro- 
viding that  if  the  investments  are  liable  to  this  addi- 
tional tax  it  must  be  five  per  cent  of  the  "  appraised 
inventory  value  *^  precludes  any  consideration  as  to 
how  much  a  legatee  or  distributee  may  actually 
receive,  and  that  this  additional  tax  becomes  the 
state's  property  upon  the  death  of  the  owner  without 
any  reference  whatsoever  to  such  amount. 

From  the  language  of  the  section  itself,  it  is 
apparent  that  the  tax  under  section  221-b  is  not  a  tax 
upon  the  property  itself,  but  is  only  a  tax  upon  the 
transfer  thereof  just  as  that  under  the  other  sections 
of  the  article  have  been  held  to  be.  Matter  of  Watson, 
226  N.  Y.  384;  affd.,  U.  S.  Sup.  Ct.,  N.  Y.  L.  J.  Dec.  11, 
1920;  Matter  of  Hazard,  228  N.  Y.  26;  Matter  of  Van- 
derbUt,  187  App.  Div.  716;  Matter  of  Penfold,  216 
N.  Y.  163;  Keeney  v.  State  of  New  York,  222  U.  S.  525. 
As  only  such  transfers  of  investments  as  are  taxable 
under  article  10  become  liable  for  the  tax  which  sec- 
tion 221-b  imposes  upon  them  {Matter  of  Wa^h- 
bourne,  180  N.  Y.  Supp.  507;  affd.,  190  App.  Div.  940; 
affd.,  229  N.  Y.  518;  Matter  of  Zimmerman,  110  Misc. 
Rep.  295),  and  as  debts  are  deducted  from  the  estate 
before  the  value  of  the  transfer  is  fixed  for  purposes  of 
taxation  under  article  10,  it  would  seem  to  me  that 


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366  Matter  of  Kolb. 

Surrogate's  Court,  Bronx  County,  February,  1921.       [Vol.  114. 


before  the  tax  under  section  221-b  is  imposed,  the  value 
5f  the  transfer  should  be  ascertained  by  similarly  de- 
ducting from  the  value  of  the  investments  so  much  of 
the  debts  as  are  chargeable  against  them.  The  sections 
of  article  10  should  be  read  together.  Matter  of  Aus- 
tin, 109  Misc.  Rep.  584  and  cases  cited.  If  we  construe 
the  phrase  **  appraised  inventory  value ''  to  mean  the 
market  value  of  the  investments  at  the  time  of  the 
death  of  the  decedent  regardless  of  the  liabilities 
which  exist  against  them  instead  of  as  meaning  the 
inventory  value  of  the  investment  as  appraised  for 
purposes  of  taxation,  that  is  after  the  deduction  of  a 
proportionate  amount  of  the  debts,  it  would  appear 
that  the  tax  would  not  be  a  tax  upon  the  transfer  but 
rather  a  tax  upon  the  property  itself,  whereas  in 
Matter  of  Watson,  226  N.  Y.  384,  401,  the  court  said: 
* '  It  is  a  flat  tax  of  five  per  cent  upon  the  transfer  of 
property  not  theretofore  taxed  as  specified.'^ 

Startling  results  might  follow  if  such  a  construction 
were  favored.  Assuming  an  estate  to  consist  of 
$100,000  in  investments  as  defined  by  article  15  of  the 
Tax  Law,  and  $1,000  of  other  property,  and  to  be  sub- 
ject to  debts  of  $100,000,  the  transfer  in  such  estate, 
assuming  that  it  goes  to  a  person  of  the  five  per  cent 
class,  would  be  taxable  under  article  10,  hence  it  would 
be  taxable  under  section  221-b.  The  tax  under  section 
221-a  would  be  on  $101,000,  less  debts  of  $100,000,  that 
is  on  $1,000,  whereas  the  additional  tax  under  section 
221-b  would  be  five  per  cent  of  $100,000,  although  it 
would  be  necessary  to  apply  approximately  $99,010  of 
the  investments  to  the  payment  of  the  debts.  Only 
about  $990  of  the  investments  would  remain  and  be 
transferred,  upon  which  a  tax  of  $5,000  would  be 
imposed. 

The  use  in  the  statute  of  the  phrase  **  appraised 
inventory   value  ''   was   unfortunate,   and   while   the 


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Matter  of  Kolb.  367 


Misc.]         Surrogate's  Court,  Bronx  County,  February,  1921. 


question  is  not  free  from  diflSculty,  I  do  not  believe 
the  intent  of  the  legislature  was  to  the  effect  claimed 
by  the  counsel  for  the  comptroller.  I  find  support  for 
this  view  in  the  decisions  of  the  surrogates  of  the 
counties  of  New  York  and  of  Kings.  Thus  in  Matter 
of  Kemp  and  in  Matter  of  Peck,  both  reported  in  the 
New  York  Law  Journal  of  March  3,  1920,  the  learned 
surrogate  of  Kings  county  reversed  orders  fixing 
transfer  taxes  and  remitted  the  matters  to  the 
appraiser  to  deduct  proportionate  amounts  of  the 
debts  and  administration  expenses  from  the  value  of 
the  securities  taxable  under  section  221-b  of  the  Tax 
Law.  In  Matter  of  Kent  and  in  Matter  of  Turner, 
N.  Y.  L.  J.  June  17,  1920,  it  was  held  by  one  of  the 
learned  surrogates  of  New  York  county  that  the 
appraiser  erred  in  not  including  the  funeral  and 
administration  expenses  and  commissions  in  making 
an  allowance  for  the  proper  deduction  from  the  market 
value  of  the  securities  in  fixing  the  sum  on  which  the 
tax  should  be  imposed  under  section  221-b. 

In  Matter  of  Watson,  226  N.  Y.  384,  the  court  said: 
** Again,  it  must  be  noted,  that  if  the  amount  of  an 
estate  is  eaten  up  by  debts  so  that  the  assets  consisting 
of  these  investments  do  not  pass  to  anybody,  of  course, 
there  can  be  no  tax.  Likewise  the  investments  should 
pay  their  proportionate  part  of  the  debts  without 
tax  "  (italics  are  mine),  and  while  it  may  be  urged 
that  the  statement  quoted  was  dictum,  it  is  the  only 
expression  by  the  Court  of  Appeals  that  I  have  been 
able  to  find  upon  the  question. 

I  hold  that  a  proportionate  amount  of  the  deduc- 
tions should  have  been  charged  against  the  invest- 
ments mentioned  before  fixing  the  value  of  their  trans- 
fer for  purposes  of  taxation  under  section  221-b. 

The  contention  that  the  interest  to.  the  date  of  the 
death   of    the   decedent   should   not  be   included   in 


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Surrogate's  Court,  New  York  County,  February,  1921.     [Vol.  114. 

appraising  the  value  of  such  investments  is  not  sus- 
tained. It  is  the  fair  market  value  of  the  transfer  at 
the  decedent *s  death  which  must  be  ascertained  (Tax 
Law,  §  230),  and  this  includes  accrued  interest.  Mat- 
ter of  Peck,  supra. 

The  fourth  ground  of  appeal  is  from  the  taxation 
of  the  securities  hereinbefore  referred  to  under  section 
221-b  aforesaid,  it  being  claimed  that  such  section  was 
suspended,  nullified  and  repealed  by  the  provisions  of 
chapter  627  of  the  Laws  of  1919.  This  ground,  how- 
ever, was  not  urged  in  the  brief,  and  in  my  opinion  i» 
not  tenable. 

The  order  appealed  from  is  reversed  for  the  rea- 
sons stated  and  the  report  remitted  to  the  appraiser 
to  proceed  as  above  indicated. 

Order  reversed. 


Matter  of  the  Estate  of  John  Fox,  Deceased. 

(Surrogate's  Court,  New  York  County,  February,  1921.) 

Wills  —  conBtruction  of  —  what  does  not  work  a  forfeiture  of  a 
legacy  —  gift  over  —  accounting. 

A  testamentary  provision  that  in  case  any  beneiiciary  shall 
directly  or  indirectly  contest  or  litigate  the  validity,  factum 
or  effect  of  the  will  in  any  action  or  proceeding  with  a  view 
to  void  or  annul  the  will,  the  legacy  of  such  contestant  shall  be 
revoked  and  any  devise  or  bequest  in  favor  of  such  contesting 
person  shall  be  absolutely  void,  and  the  will  take  effect  and 
be  administered  as  though  such  contesting  person  predeceased 
the  testator,  does  not  work  a  forfeiture  of  the  legacy  to  a  con- 
testant, unless  there  is  a  gift  over  in  ease  of  breach  of  the 
condition,  and  a  gift  of  the  residue  is  not  such  a  gift  over. 

Proceeding  npon  an  accounting  by  a  trustee. 

Edwin  C.  Mulligan,  for  The  Equitable  Trust  Com- 


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Matter  of  Fox. 


Misc.]         Surrogate's  Court,  New  York  County,  February. 

Ellwood  M.  Eabenold,  special  guardian  for 
arine  Hogan  O'Brien  and  John  Fox  O'Brien. 

Eleanor   B.    Fox,   beneficiary   under   the    ^ 
person. 

CoHALAN,  S.  In  this  accounting  proceedi 
court  is  asked  to  pass  upon  the  validity  or  el 
the  *'  in  terrorem  "  clause  contained  in  par 
22  of  the  will  as  against  Eleanor  B.  Fox  by 
of  her  action  in  the  Supreme  Court  to  have  i 
will  and  testament  of  the  deceased  set  asi< 
adjudged  invalid.  Paragraph  22  of  the  will  p 
in  substance  that  in  case  any  beneficiary  na 
the  will  shall  directly  or  indirectly  contest  or 
the  validity,  factum  or  effect  of  the  will  in  any 
or  proceeding  with  a  view  to  void  or  annul  tl 
the  legacy  of  such  contestant  shall  be  revoke 
any  devise  or  bequest  in  favor  of  such  cor 
person  shall  be  absolutely  void  and  the  will 
take  effect  and  be  administered  as  though  su 
testing  person  died  before  me."  The  cases  he 
a  forfeiture  of  a  legacy  is  not  effected  by  such 
vision  in  a  will  unless  there  is  a  gift  over  in 
the  breach  of  the  condition,  and  a  gift  of  the 
is  not  such  a  gift  over.  Matter  of  Wall,  76  Mis 
106 ;  Matter  of  Arrowsmith,  162  App.  Div.  623. 
graph  22  contains  no  gift  over  in  particular  tei 
provides  that  the  will  shall  be  construed  as 
contesting  person  —  in  this  case,  Eleanor  B. 
I  had  predeceased  the  testator.    We  must  theref  ( 

j  at  the  provisions  of  the  will  which  would  be  e 

1  in  case  Eleanor  B.  Fox  were  not  living  at  the 

the  death  of  the  testator.  Paragraph  17  of  i 
provides  that  in  case  of  the  death  of  Eleanor 
without  issue  her  share  of  the  estate  is  beques 
Katharine  O'Brien.  The  legacy  is  in  expres 
24 


370  Matter  of  Mitchell. 

Surrogate's  Court,  New  York  County,  February,  1921.     [Vol.  114. 

the  gift  of  the  residue  of  the  estate.  This  general 
residuary  clause  under  the  authorities  above  cited 
does  not  appear  to  be  sufficient  to  make  the  forfeiture 
effective.  Furthermore,  the  one  primarily  interested 
in  sustaining  the  forfeiture  is  Katharine  O'Brien,  as 
under  the  terms  of  paragraph  17  of  the  will  she 
would  be  entitled  to  Eleanor  B.  Fox's  share.  The 
O'Brien  infants,  children  of  Katharine  O'Brien,  repre- 
sented by  the  special  guardian  in  this  proceeding,  are 
only  contingently  interested  in  the  share  of  Eleanor 
B.  Fox  in  the  event  of  the  latter 's  death  without  issue, 
which  they  would  take  provided  their  mother,  Katha- 
rine O'Brien,  should  predecease  them.  Katharine 
O'Brien  makes  no  claim  of  forfeiture  against  Eleanor 
B.  Fox.  In  view  of  all  the  foregoing  it  is  the  opinion 
of  the  court  that  no  forfeiture  has  resulted. 

The  proceeds  of  the  sale  of  the  furniture,  furnish- 
ings and  appurtenances  of  the  residence  **  Foxhurst  " 
should  be  distributed  equally  between  Katharine 
O'Brien  and  Eleanor  B.  Fox. 

A  decree  may  be  submitted  on  notice  settling  the 
account  accordingly. 

Decreed  accordingly. 


Matter  of  the  Estate  of  John  A.  Mitchell,  Deceased. 
(Surrogate's  Court,  New  York  County,  February,  1921.) 

WillB  —  oonstmction  of  —  speciflc  legacies  — corporations  — part- 
nership agreements. 

An  agreement  between  partners,  contemplating  the  incorpo- 
ration of  their  business  as  a  publishing  company,  stated  that 
it  was  the  desire  of  both  to  retain  within  their  own  control,  so 
far  as  possible,  the  entire  management  of  the  corporation  about 
to  be  formed,  with  power  to  purchase  each  other's  stock. 
Held,  that  this  option  only  existed  during  the  lifetime  of  the 
parties.  One  of  the  partners  who  at  his  death,  twenty- fi-e 
years  later,  was  the  o^vner   of  three-fourths  of  the  capil.il 


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Matter  of  Mitchell. 


Misc.]        Surrogate's  Court,  New  York  Connty,  Febmar} 

stock   of  the  company,  bequeathed  one  hundred   ai 
shares  thereof  to  his  sister,  cousin  and  three  of  his 
in  the  business,  in  different  allotments,  with  proviso  tl 
of  said  legatees  should  not  survive  him  the  share  w 
legatee  would  have  received  should  go  to  his  or  her 
children  in  equal  shares,  or  in  default  of  such  issue 
'    the  testator,  then  such  shares  should  go  to  the  next 
each  of  the  original  legatees  in  equal  shares,  per  st 
not  per  capita.     The  remaining  shares  owned  by  test 
bequeathed  in  trust  for  his  wife  for  life,  and  at  1 
to  several  of  his  business  associates,  including  the  t 
▼iously  remembered.     Held,  that  all  the  legacies  wei 
and  the  legatees  were  severally  entitled  to  a  pro  rata 
tion  of  a  dividend  on  the  stock,  declared  within  a  ye 
death  of  the  testator. 

During  a  four  months'  illness  of  a  servant  who  ha< 
testator's  employ  for  the  fourteen  months  preceeding 
he  paid  her  medical  and  hospital  expenses  and  thougl 
not  discharged  she  received  no  salary.  The  hospital 
were  in  excess  of  her  wages  during  her  absence,  t 
resuming  work  she  continued  in  the  ser\'ice  of  the  test 
his  death,  seven  months  later.  Held,  that  under  a  clai 
will  reading :  "  I  give  and  bequeath  *  *  *  to  ea 
other  servants  who  are  in  my  employ  *  •  *  at 
of  my  death  and  have  been  so  employed  by  me  foi 
than  one  year  preceding  my  death,  the  sum  of  five 
dollars,"  said  servant  was  entitled  to  the  legacy. 

Proceeding  upon  the  judicial  settlement 
accounts  of  executors. 

Spencer,  Ordway  &  Wierum  (Nelson  S.  f 
of  counsel),  for  executors  Charles  Holt  and 
H.  Ordway. 

Root,  Clark,  Buckner  &  Rowland  (Grenvill 
and  Cloyd  Laporte,  of  counsel),  for  objecting:  1 

Murray,  Ingersoll,  Hoge  &  Humphrey  (T 
F.  Humphrey,  of  counsel),  for  executor  Georj 
Ingersoll. 

Francis  J.  Hogan,  for  Mary  Broderick. 


Surrogate's  Court,  New  York  County,  February,  1921.     [Vol.114. 

F0I4EY,  S.  On  the  accounting  two  questions  arise. 
John  A.  Mitchell  executed  his  will  May  27,  1918,  and 
died  about  a  month  later.  He  bequeathed  750  shares 
of  stock  in  the  Life  Publishing  Company,  of  which  180 
were  given  outright  to  his  sister,  his  cousin  and  three 
associates  in  his  business.  The  remaining  570  shares 
he  gave  in  trust  to  his  widow  for  life,  and  on  her 
death  to  several  of  his  associates,  including  the  three 
previously  remembered.  The  weekly  magazine  Life 
was  founded  by  himself  and  Andrew  Miller  in  1882. 
Mr.  Mitchell's  interest  was  three-fourths,  and  Mr. 
Miller's  one-fourth  of  the  firm.  In  1892  the  partner- 
ship was  incorporated,  with  a  capital  of  $10,000.  Mr. 
Mitchell  received  750  shares  and  Mr.  Miller  the 
remaining  250  shares  in  the  company,  which  each 
retained  up  to  Mr.  Mitchell's  death.  The  former  was 
president,  and  the  latter  secretary  and  treasurer  of  the 
company.  The  business  grew  from  an  original  capital 
of  $600  to  a  valuation,  in  1920,  of  $1,000,000. 

The  first  question  in  dispute  is  whether  the  legacies 
of  180  shares  are  general,  as  claimed  by  the  executors, 
or  specific,  as  contended  by  the  legatees.  The  decision 
of  this  question  also  involves  the  payment  of  a 
dividend,  declared  within  one  year  of  the  death  of 
testator,  amounting  to  $100  i)er  share,  or  a  total  of 
$18,000.  If  the  legacies  are  specific  this  amount  goes 
to  the  legatees ;  if  general,  it  goes  into  the  residuary 
estate  left  to  the  widow.  I  hold  that  the  legacies  are 
specific.  Matter  of  Security  Trust  Co.,  221  N.  Y. 
213,  sustains  this  finding.  The  2d  paragraph  of  the 
will,  which  relates  to  this  stock,  is  as  follows: 
**  Second.  I  give  and  bequeath  to  my  sister,  Anna  M. 
Richards,  one  hundred  shares  of  the  capital  stock  of 
Life  Publishing  Company;  to  my  cousin,  Amelia  H. 
Ames,  fifty  shares  *  *  * ;  to  Edward  S.  Martin  ten 
shares     *     *     *:   to  James  S.  Metcalfe  ten   shares 


Matter  of  Mitchell.  373 

Misc.]        Surrogate's  Court,  New  York  County,  February,  1921. 

•  •  •;  to  Thomas  L.  Masson  ten  shares  *  *  *. 
If  any  of  said  legatees  shall  not  survive  me,  then  I 
give  and  bequeath  the  shares  of  stock  which  any  such 
legatee  would  have  received  under  this  paragraph  if 
he  or  she  had  survived  me  to  his  or  her  children  who 
shall  survive  me,  in  equal  shares,  or  if  any  of  such 
legatees  should  leave  no .  children  surviving  me,  then 
I  give  and  bequeath  the  same  to  his  or  her  next  of 
kin  in  equal  shares,  per  stirpes  but  not  per  capita.'^ 
The  3d  paragraph  bequeathed  the  remaining  570 
shares. 

In  Matter  of  Security  Trust  Co.,  supra,  219,  Mr. 
Justice  Crane  says:  ^^  It  is  the  intention  of  a  testator, 
as  gathered  from  his  entire  will,  which  determines 
whether  the  legacy  be  general  or  specific."  A  very 
slight  indication  of  an  intention  to  give  shares  owned 
by  him  when  the  will  is  executed  is  enough  to  make 
the  legacy  specific.  Thayer  v.  Paulding,  200  Mass. 
98, 

The  indications  of  intent  in  this  will  are  just  as 
strong  as  those  in  Matter  of  Security  Trust  Company. 
The  stock  of  the  Life  Publishing  Company  was  not 
publicly  dealt  in.  The  corporation  here  was  even  a 
closer  one,  with  but  two  stockholders.  The  agreement 
of  1892  between  Messrs.  Mitchell  and  Miller  stated: 
**  The  parties  desire  *  *  *  to  retain  as  far  as 
possible  the  entire  management  of  said  corporation 
so  to  be  formed  within  their  own  control. ' '  Under  this 
agreement  also  each  had  the  power  to  purchase  the 
other's  stock,  in  the  event  of  a  desire  to  withdraw 
or  to  sell  the  stock  to  an  outsider.  A  fair  construc- 
tion of  this  contract  is  that  this  option  only  existed 
during  the  lifetime  of  the  parties.  After  the  death  of 
either,  the  executor  of  the  deceased  did  not  possess 
the  option  to  purchase  from  the  survivor.  In  the 
present  case  Mr.  Mitchell  bequeathed  and  owned  at 


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374  Matter  of  Mitchell. 

Surrogate's  Court,  New  York  County,  February,  1921.     [Vol.  114. 

his  death  750  shares  out  of  a  total  issue  of  1,000, 
whereas  in  the  Security  Trust  Company  case  the 
decedent  held  and  bequeathed  2,024  out  of  5,000  shares 
in  the  company.  Mr.  Mitchell  must  have  known  that 
his  executors  would  not  be  able  to  replace  the  stock 
bequeathed  by  him  in  case  he  disposed  of  it,  in  whole 
or  in  part,  during  his  lifetime.  His  will  disposes  of 
the  exact  number  of  shares  owned  by  him  at  the  time 
it  was  executed.  At  his  death  he  possessed  the  same 
amount  of  stock.  The  legatees  here  were  favored  rela- 
tives and  business  associates  who  apparently  had 
helped  to  make  the  business  successful.  His  intention 
was  plainly  to  give  them  an  immediate  interest.  More- 
over, he  provided  for  a  complete  disposition  of  the 
stock,  to  the  children  or  next  of  kin  of  the  legatees, 
in  case  any  one  predeceased  him.  Finally  it  is  claimed 
by  the  executors  that  there  is  a  distinction  between 
the  gift  of  the  180  shares  and  the  gift  of  the  remainders 
in  the  570  shares,  because  of  the  use  of  the  word  ^*  my  '* 
in  paragraph  3  referring  to  the  latter,  which 
authorizes  the  trustees  **  to  retain  all  of  my  said  570 
shares.'*  This  contention  cannot  be  sustained.  The 
executors  concede  that  the  legacies  of  the  570  shares 
are  specific.  Tifft  v.  Porter^  8  N.  Y.  516.  There  is  no 
actual  diflFerence  between  these  two  groups.  The 
words  of  gift  in  each  case  are  the  same.  In  the  case 
of  the  570  shares  which  were  left  in  trust  he  neces- 
sarily conferred  powers  upon,  and  gave  instructions 
to,  his  trustees.  Certain  of  the  legatees  receive  shares 
under  both  clauses.  The  use  of  the  word  '^  my,'*  there- 
fore, does  not  limit  one  group  but  characterizes  all  of 
the  legacies  as  specific.  2  Jarman  Wills  (6th  ed.), 
1028, 1077;  Kunkel  v.  MacGill,  56  Md.  120.  For  these 
reasons  the  legatees  are  entitled  to  the  specific  shares 
and  to  a  pro  rata  distribution  of  the  dividend  of 
$18,000,  but  without  interest. 


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Matter  of  Rowley.  375 

Misc.]      Surrogate's  Court,  Westchester  County,  February,  1921. 

The  second  question  has  to  do  with  the  claim  of 
Mary  H.  Broderick,  one  of  his  servants,  under  the 
5th  paragraph  of  the  will,  which  reads:  '^  I  give  and 
bequeath  *  *  *  to  each  of  my  other  servants  who 
are  in  my  employ  *  *  •  at  the  time  of  my  death 
and  have  been  so  employed  by  mo  for  not  less  than 
one  year  preceding  my  death,  the  sum  of  five  hundred 
dollars."  The  executors  dispute  her  claim.  It  appears 
that  Mary  H.  Broderick  was  employed  by  the  testator 
for  fourteen  months,  from  May  1,  1917,  to  his  death 
on  June  29,  1918.  During  this  period  she  became  ill 
and  was  obliged  to  go  to  the  hospital.  Mr.  Mitchell 
paid  her  medical  and  hospital  expenses  amounting  to 
$262.  It  is  true  that  her  salary  was  not  paid  during 
the  four  months  of  her  illness,  but  she  was  not 
discharged  and  she  was  excusably  absent.  The  hospi- 
tal expenses  were  in  excess  of  her  wages  during  her 
absence.  As  soon  as  she  was  able  she  resumed  her 
work  and  continued  until  his  death  seven  months  later. 
It  is  neither  in  harmony  with  the  spirit  of  his  will, 
nor  his  generous  treatment  of  her,  that  she  should  be 
deprived  of  this  small  legacy.  I  hold  that  she  is 
entitled  to  it. 

Decreed  accordingly. 


Matter  of  the  Probate  of  the  Last  Will  and  Testament 
of  William  S.  Rowley,  Deceased. 

(Surrogate's  Court,  Westchester  County,  February,  1921.) 

Surrogates '  OonrtB  —  service  by  publication  —  probate  ~-  when 
motion  to  vacate  service  of  citation  by  publication  denied  — 
wiUs. 

The  presumption  in  favor  of  the  regularity  of  judicial  pro- 
cess should  not  be  lightly  disregarded,  and  the  statement  in 
the  moving  affidavit  on  a  motion  to  vacate  the  service  of  the 


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376  Matteb  of  Bowley. 

Surrogate's  Court,  Westchester  County,  February,  1921.     [Vol.  114. 

citation  to  attend  the  probate  of  a  will,  that  '^  I  did  not  receive 
the  citation  or  summons  by  mail"  cannot  be  accepted  as  a 
reason  for  opening  up  the  decree  admitting  the  will  to  probate. 

Motion  to  vacate  and  set  aside  a  decree  admitting 
a  will  to  probate. 

Horace  Comfort  (Frederick  P.  Close,  of  counsel), 
for  motion. 

Mott  &  McCready,  in  opposition. 

Slater,  S.  Upon  notice  of  motion,  Samuel  Rowley 
Macdonald  and  John  Rowley  seek  to  vacate  and  set 
aside  the  decree  entered  herein  on  the  7th  day  of 
October,  1920,  admitting  to  probate  the  will  of  William 
S.  Rowley,  and  for  leave  to  file  objections  to  the  pro- 
bate of  said  will.  The  petition  was  served  upon  them 
and  others  by  publication  and  mailing.  The  petition 
for  the  order  of  publication  recited  that  Samuel  Row- 
ley Macdonald  resides  at  Wallingford,  Conn.,  and 
John  Rowley  resides  at  Palo  Alto,  Cal.  Pursuant  to 
the  order  of  publication,  citation  was  duly  published 
and  mailed  to  them  at  said  addresses,  as  appears  by 
the  affidavits  of  publication  and  mailing.  The  citation 
issued  July  13,  1920,  and  was  returnable  September 
28,  1920.  They  both  swear  in  their  affidavits,  and 
Samuel  Rowley  also  appearing  personally,  and  stated, 
that  they  never  received  the  citation  by  mail  and  were 
not  otherwise  informed  as  to  the  probate  of  the  will 
until  late  in  October,  1920. 

When  service  of  process  is  made  by  mail,  the  deposit 
in  the  post  office  is  the  service.  Elliot  v.  Kennedy,  26 
How.  Pr.  422.  The  provision  of  the  statute  for  service 
by  publication  is  a  substitute  for  personal  service,  and 
it  must  be  strictly  observed.  Fink  v.  Wallach,  47  Misc. 
Rep.  242;  Fair  v.  Kenntf,  103  id.  412.    The  serv- 


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Matter  of  Rowley.  377 

Misc.]       Surrogate's  Court,  Westchester  County,  February,  1921. 

ice  of  the  citation  in  every  way  complied  with  the 
Code.  It  is  presumed  that,  when  papers  are  mailed, 
they  are  received  by  the  person  who  is  addressed,  and 
that  the  person  is  fairly  and  fully  apprised.  Mish- 
kind  V.  Sidorsktf,  189  N.  Y.  402 ;  Heller  v.  Levinson,  166 
App.  Div.  673.  The  burden  of  proving  want  of  juris- 
diction is  upon  the  party  questioning  it,  and  it  must 
be  established  in  a  clear  and  satisfactory  manner  to 
nullify  the  decree.  Steinhardt  v.  Baker,  20  Misc.  Rep. 
470;  affd.,  163  N.  Y.  410.  Upon  motion  to  vacate  a 
service  of  citation,  the  moving  party  must  distinctly 
negative  the  existence  of  circumstances  which  would 
render  the  service  valid. 

By  subdivision  6  of  section  2490  of  the  Code  of  Civil 
Procedure  the  surrogate  is  authorized:  **  To  open, 
vacate,  modify,  or  set  aside,  or  to  enter  as  of  a  former 
time,  a  decree  or  order  of  his  court ;  or  to  grant  a  new 
trial  or  a  new  hearing  for  fraud,  newly  discovered 
evidence,  clerical  error,  or  other  sufficient  cause 
•  •  *  only  •  •  •  in  the  same  manner,  as  a  court 
of  record  of  general  jurisdiction  exercises  the  same 
powers. ''  The  complaining  parties  do  not  allege 
fraud,  newly  discovered  evidence  or  clerical  error. 
Do  they  come  under  **  other  sufl&cient  cause!''  Matter 
of  Toivnsend,  215  N.  Y.  442;  Matter  of  TUden,  98  id. 
434;  Matter  of  Henderson,  157  id.  423;  Ferguson  v. 
Crawford,  70  id.  253.  The  excuse  offered  is  that  they 
did  not  receive  the  citation  through  the  mails.  It  was 
admitted  by  Samuel  Rowley  Macdonald  that  he  was  at 
Wallingford,  Conn.,  throughout  the  summer  of  1920 
and  was  well  known  to  the  postal  authorities.  John 
Rowley  stated  in  his  affidavit  that  he  had  not  lived  at 
Palo  Alto,  Cal.,  but  at  Berkeley,  Cal.,  for  over  twelve 
years  last  past.  However,  deeds  executed  by  him  in 
1910,  recorded  in  the  Westchester  county  register's 
office,  recite  him  as  a  resident  of  Palo  Alto,  Cal.    The 


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378  Matter  of  Rowlbt. 


Surrogate's  Court,  Westchester  County,  February,  1921.     [Vol.  114. 

attorney  for  the  proponent,  upon  inquiry,  was 
informed  by  members  of  the  family  on  the  day  of  the 
funeral  of  the  decedent  that  John  Rowley's  post  office 
address  last  known  to  them  was  Palo  Alto.  At  this 
hearing  no  one  was  produced  who  knew  otherwise. 

The  circumstances  under  which  the  power  may  be 
exercised  are  questions  addressed  to  the  court  to 
which  application  is  made.  Matter  of  Severance,  106 
Misc.  Eep.  710,  and  cases  cited;  Matter  of  Tilden,  98 
N.  Y.  434;  Matter  of  Henderson,  157  id.  423;  Matter 
of  Toivnsend,  215  id.  442;  Matter  of  Hermann,  178 
App.  Div.  182. 

In  Matter  of  Norwood,  111  Misc.  Rep.  530,  the  peti- 
tioner had  knowledge  of  the  correct  address  of  the 
persons  served;  but  mailed  the  citation  to  another 
place  and,  consequently,  the  decree  of  probate  was 
opened.  In  Pfotenhauer  v.  Brooker,  52  Misc.  Rep.  649, 
statement  was  made  that  not  only  was  no  summons 
ever  served,  but  at  the  time  when,  and  place  where, 
the  service  was  alleged  to  have  been  made,  the  defend- 
ant was  not  present  and  had  not  been  at  that  place. 

It  appears  from  the  evidence  that  both  Samuel  Row- 
ley Macdonald  and  John  Rowley  had  engaged  the  same 
attorney  early  in  July,  1920.  On  the  day  of  the  issu- 
ance of  the  citation,  July  13,  1920,  the  attorney  for 
the  proponent  wrote  Mr.  Comfort  and  said:  *'  Refer- 
ring to  your  favor  of  the  13th  instant  in  the  matter  of 
the  estate  of  William  S.  Rowley,  we  filed  the  original 
will  and  probate  papers  on  the  13th  instant  and 
obtained  order  for  publication  of  citation  returnable 
on  September  28th  at  10  a.  m.  at  White  Plains.'' 

From  letters  in  evidence  it  seems  that  throughout 
the  summer  the  two  moving  parties  were  considering 
a  contest  of  the  probate  of  the  will.  The  whole  matter 
was  gone  over  with  counsel.    John  Rowley  wrote  to 


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Matter  of  Bowlbt.  379 

Misc.]      Smrogate's  Court,  Westchester  County,  February,  1921. 

his  attorney  on  August  20,  1920:  ''  The  matter  of  a 
contest  I  leave  entirely  in  your  hands.  *' 

I  can  imagine  a  case  where  the  citation,  though  prop- 
erly served  by  publication  and  mailing,  never  was 
received  by  the  party  sought  to  be  served  because  he 
was  absent  in  a  distant  country  and  could  not  and  did 
not  receive  notice  until  after  the  decree  of  probate. 
Such  facts  do  not  exist  in  the  instant  case.  The  pre- 
sumption in  favor  of  the  regularity  of  judicial  process 
should  not  be  lightly  disregarded.  I  have  been  unable 
to  find  a  case  anywhere  where  the  excuse  *^  I  did  not 
receive  the  citation  or  summons  by  mail ''  was  offered 
and  accepted  as  a  reason  for  opening  up  a  decree  or 
judgment.  A  practice  which  would  permit  decrees 
to  be  opened  from  time  to  time  on  such  an  excuse 
would  lead  to  intolerable  consequences  and  dangers  to 
judicial  determinations.  Opportunity  would  be 
offered,  and  in  fact  invited,  for  fraud  to  be  practiced. 
The  conclusiveness  of  surrogates'  decrees,  section 
2550  of  the  Code,  would  be  shallow  indeed.  In  the 
instant  case  the  attorney  failed  to  suggest  to  his 
clients  what  he  knew,  namely,  that  the  citation  had 
issued  and  was  returnable  September  28,  1920.  His 
oversight,  or  neglect,  and  his  clients'  statements  that 
they  failed  to  receive  the  citation  are  not  sufficient 
causes,  in  my  opinion,  to  open  the  decree  of  probate. 
No  valid  grounds  of  objections  within  my  jurisdiction 
are  presented,  and  the  decree  admitting  the  will  to 
probate  should  not  be  set  aside. 

Under  section  2763  of  the  Code  of  Civil  Procedure, 
the  Appellate  Division  is  called  upon  on  appeal  to 
review  this  determination  as  if  an  original  application 
were  made  to  that  court.  Matter  of  Shonts,  229  N.  Y. 
374,  378. 

Counsel  opposed  to  the  motion  called  for  certain 
correspondence  passing  between  Mr.  Comfort  and  the 


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380         Chemung  Iron  &  Steel  Co.  v.  Hobn. 

Appellate  Term,  First  Department,  February,  1921.     [Vol.  ]14. 

moving  parties  hereto.  They  refused  to  produce  the 
correspondence,  but  stipulated  upon  the  record  that 
the  court  should  read  the  letters  and  insert  in  the 
record  such  part  thereof  as  reflected  upon  the  question 
involved.    This  I  have  done. 

Motion  denied. 


Chemung  Iron  and   Steel   Company,  Appellant,  v. 
Herman  S.  Horn  and  Another,  Respondents. 

(Supreme  Court,  Appellate  Term,  First  Department,  December, 
1920,  Term  — Filed  February,  1921.) 

Oontracts  -r-  delay  in  delivery  of  goods  —  rescission  —  evidence. 

The  rule  that  while  delay  in  the  performance  within  a  rea- 
sonable time  of  a  contract  calling  for  successive  deliveries  of 
goods  may  give  rise  to  a  cause  of  action  for  damages  it  will 
not  always  permit  rescission,  does  not  apply  to  an  executory 
contract  of  sale  where  delivery  within  a  reasonable  time  is  a 
concurrent  condition  to  any  obligation  of  the  buyer  to  accept 
and  pay  and  where  the  time  to  perform  such  condition  has 
expired  before  notice  of  rescission  was  given. 

More  than  four  months  after  the  making,  on  September  13, 
1918,  of  a  contract  for  the  sale  and  delivery  of  certain  iron, 
and  at  a  time  when  plaintiff  was  not  ready  to  deliver  the 
goods,  defendants  in  writing  cancelled  the  order,  and  while  the 
testimony  on  behalf  of  plaintiff  in  an  action  for  damages 
tended  to  show  that  the  average  time  in  which  it  was  possible  to 
secure  delivery  of  goods  called  for  by  the  contract,  during  the 
war,  was  from  four  to  five  months,  one  of  the  defendants 
testified  that  plaintiff  stated  that  it  could  deliver  the  goods 
within  four  or  five  weeks.  Held,  that  a  finding  that  on  Jan- 
uary 16,  1919,  when  the  order  was  cancelled  because  of  plain- 
tiff's delay,  more  than  the  reasonable  time  contemplated  for  the 
delivery  of  the  goods  had  elapsed,  was  warranted. 

The  trial  court  having  found  upon  proper  evidence  thut 
plaintiff  did  not  deliver  the  goods  within  a  reasonable  time,  as 


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Chemung  Iron  &  Steel  Co.  v.  Horn.         381 

Misc.]     Appellate  Term,  First  Department,  February,  1921. 

required  by  the  contract  of  sale,  the  plaintiff  had  no  right  of 
action  for  damages,  and  a  judgment  dismissing  the  complaint 
upon  the  merits  will  be  affirmed. 

Appeal  by  plaintiflf  from  a  judgment  of  the  Munic- 
ipal Court  of  the  city  of  New  York,  borough  of  Man- 
hattan, second  district,  in  favor  of  defendants  dismiss- 
ing the  complaint  upon  the  merits. 

Morrell,  Bates,  Topping  &  Anderson  (Laurence  A. 
Anderson,  of  counsel),  for  appellant. 

Cohen,  Haas  &  Schimmel  (Isadore  Cohen,  of  coun- 
sel), for  respondents. 

Lehman,  J.  The  contract  herein  was  made  on  Sep- 
tember 13,  1918.  When  the  defendants  wrote  to  the 
plaintiflf  that  they  cancelled  the  order,  more  than  four 
months  had  passed,  and  concededly  even  at  that  time 
the  plaintiff  was  not  ready  to  deliver  the  goods.  While 
the  plaintiff  produced  testimony  to  show  that  the  aver- 
age time  in  which  it  was  possible  to  secure  delivery  of 
goods  of  this  kind  during  the  war  was  from  four  to 
nine  months  because,  as  one  witness  stated,  deliveries 
were  made  "  at  the  mill's  convenience,"  there  can  be 
no  doubt  but  that  in  view  of  the  defendant's  testimony 
that  the  plaintiff  stated  it  could  deliver  within  four 
or  five  weeks,  the  trial  justice  was  entirely  warranted 
in  finding  that  on  January  sixteenth,  when  the  defend- 
ants notified  the  plaintiff  that  they  cancelled  the  order 
because  of  plaintiff's  delay,  far  more  than  the  reason- 
able time  as  contemplated  by  the  parties  for  the 
delivery  of  the  goods  had  elapsed. 

In  the  case  of  Pope  v.  Terre  Haute  Car  <&  Mfg.  Co., 
107  N.  Y.  61,  the  court  stated:  *'  There  is  no  allega- 
tion in  the  complaint  as  to  the  time  within  which  the 
contract  was  to  be  performed  by  delivery  of  the  iron. 


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Appellate  Term,  First  Department,  February,  1921.     [Vol.  114. 

and  no  time  is  mentioned  in  the  written  contract.  The 
law  supplies  the  omitted  term,  and  the  contract  in  legal 
effect  was  an  engagement  on  the  part  of  the  plaintiffs 
to  deliver  within  a  reasonable  time.  The  promise  of 
the  plaintiffs  to  sell  and  deliver  the  iron,  and  of  the 
defendant  to  receive  and  pay  therefor  were  mutual 
and  concurrent  and  neither  party  can  maintain  an 
action  against  the  other  for  a  breach  of  the  contract 
without  proving  performance  on  his  part.  It  was, 
therefore,  necessary,  as  a  matter  of  proof,  that  the 
plaintiff  slouW  show  that  he  delivered,  or  offered  to 
deliver,  the  iron  within  a  reasonable  time,  for  this  was 
his  contract,  and  whatever  is  essential  to  a  cause  of 
action  must  be  averred.''  That  rule  of  law  was  well 
established  and  well  recognized  even  before  the  time 
of  that  decision,  and  I  cannot  find  that  it  has  ever  been 
overruled  or  even  questioned  by  any  decision  since 
then,  but  was  expressly  reaffirmed  in  the  case  of 
Eppens,  Smith  S  Weimann  Co.  v.  Little  John,  164 
N.  Y.  187.  In  the  present  case  the  trial  justice  has 
found  upon  proper  evidence  that  the  plaintiff  did  not 
deliver  or  offer  to  deliver  the  goods  it  sold  within  a 
reasonable  time  as  required  by  its  contract,  and  it 
would,  therefore,  seem  that  the  plaintiff  has  no  right 
of  action  against  the  defendants. 

It  is  claimed,  however,  that  under  the  decision  of 
Taylor  v.  Goelet,  208  N.  T.  253,  even  though  the  plain- 
tiff had  failed  to  perform  its  contract  within  a  reason- 
able time,  the  defendants  had  no  right  to  give  notice 
of  cancellation  without  prior  notice  to  the  plaintiff 
requiring  performance  within  a  reasonable  time  speci- 
fied in  the  notice.  In  that  case  the  court  decided  that 
no  rescission  can  be  made  of  an  executory  contract 
where  the  time  of  performance  has  been  left  indefinite 
until  time  has  been  made  an  essential  element  of  the 
contract  by  a  reasonable  notice  demanding  perform- 


Chemung  Iron  &  Steel  Co.  v.  Horn.         383 

Misc.]     Appellate  Term,  First  Department,  February,  1921. 

ance  and  stating  that  the  contract  will  be  rescinded 
if  the  notice  is  not  complied  with.  It  is  to  be  noted, 
however,  that  the  court  was  there  considering  the 
rights  of  the  parties  under  a  building  contract  involv- 
ing successive  or  continued  acts,  and  which  necessarily 
remained  in  existence  until  rescinded  by  one  party, 
and  which  if  rescinded  after  performance  was  begun, 
would  necessarily  result  in  a  forfeiture,  by  the  party 
partially  performing,  of  the  value  of  his  work.  It 
would  not,  however,  seem  to  have  any  application  to 
an  executory  contract  of  sale  of  goods  not  to  be 
specially  manufactured  by  the  seller  and  where  the 
seller  was  required  merely  to  perform  the  one  act  of 
delivering  the  goods  to  the  buyer.  In  such  a  case  as 
shown  above,  the  seller  must  tender  delivery  within 
a  reasonable  time,  and  if  he  fails  to  do  so,  the  buyer 
is  under  no  obligation  to  accept  the  goods.  No  rescis- 
sion of  the  contract  by  the  buyer  is,  therefore,  neces- 
sary, but  the  buyer's  obligation  has  ceased  when  the 
seller  failed  to  perform  the  concurrent  condition  to  be 
performed  on  his  part.  A  notice  on  the  part  of  the 
buyer  that  the  contract  is  cancelled  is,  under  such 
circumstances,  not  a  wrongful  act  on  his  part  nor  a 
roj^udiation  of  his  obligation,  and,  therefore,  cannot 
give  rise  to  any  cause  of  action  on  the  part  of  the 
seller.  It  should  be  regarded  rather  as  an  intimation 
on  the  part  of  the  buyer  that  in  his  opinion  the  reason- 
able time  for  delivery  had  passed,  and  that  therefore 
the  seller  need  not  go  to  the  trouble  and  expense  of 
making  a  tender  which  will  not  be  accepted.  In  send- 
ing such  notification  the  buyer  assumes  the  risk  of  the 
court  or  jury  deciding  that  a  reasonable  time  had  not 
in  fact  yet  elapsed,  but  he  assumes  no  other  risk  or  lia- 
bility. While  the  case  of  Taylor  v.  Goelet,  supra,  has 
not  been  expressly  limited,  it  is  significant  that  in  the 
subsequent  case  of  Brede  v.  Rosedale  Terrace  Co.,  216 


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384  NORTHMANN  V.  HaAS. 

Appellate  Term^  First  Department,  February,  1921.     [Vol.  114. 

N.  Y.  246,  it  is  cited  as  an  example  of  the  rule  that : 
**  Where  a  contract  involving  successive  or  continued 
acts  is  to  be  performed  in  a  reasonable  time,  delay, 
though  it  will  give  rise  to  a  cause  of  action  for  dam- 
ages, will  not  always  permit  rescission.''  It  has  been 
applied  to  executory  contracts  of  sale  where  the 
goods  were  to  be  specially  manufactured,  and  to 
executed  contracts  of  sale  where  the  price  was  paid 
and  title  passed  before  delivery,  but  it  evidently  has 
no  application  to  an  executory  contract  of  sale  where 
delivery  within  a  reasonable  time  was  a  concurrent 
condition  to  any  obligation  of  the  buyer  to  accept  and 
pay,  and  where  the  time  to  perform  such  concurrent 
condition  had  expired  before  the  notice  was  sent. 

Judgment  should  therefore  be  affirmed,  with  twenty- 
five  dollars  costs. 

Guy  and  Wagner,  JJ.,  concur. 

Judgment  affirmed,  with  twenty-five  dollars  costs. 


Henry    E.    Northmann,    Landlord,    Respondent,    v. 
Abraham  Hass,  Tenant,  Appellant. 

(Supreme  Court,  Appellate  Term,  First  Department,  December, 
1920,  Term  — Filed  February,  1921.) 

Lease  —  exercise  of  option  to  renew  —  notice  —  landlord  and  ten- 
ant —  summary  proceedings  —  evidence. 

By  a  lease  expiring  April  30,  1920,  the  tenant  had  the  option 
of  a  renewal  for  three  years  upon  giving  notice  to  the  land- 
lord by  registered  mail  between  April  1  and  November  1,  1919. 
During  that  time  the  tenant  gave  both  oral  and  written  notice 
to  the  general  agent  of  the  landlord  having  charge  of  the  prem- 
ises and  collection  of  rents,  that  he  exercised  his  option  to 
renew.  Held,  that  where  the  testimony  of  the  tenant  in  a  sum- 
mary proceeding  against  him  as  a  holdover  brought  by  one 


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NORTHMANN  V.  HaAS.  385 

Misc.]     Appellate  Term,  First  Department,  February,  1921. 

who  became  the  owner  of  the  premises  during  the  continuance 
of  the  lease,  was  to  the  effect  that  when  he  gave  the  oral  and 
written  notice  he  was  told  by  the  agent  that  notice  by  regis- 
tered mail  was  not  necessary,  was  denied  by  the  agent,  a  ques- 
tion of  fact  was  presented  and  a  final  order  in  favor  of  the 
landlord  entered  by  direction  of  the  court  after  a  jury  trial 
will  be  reversed  and  a  new  trial  ordered. 

Appeal  by  tenant  from  a  final  order  entered  in  favor 
of  the  landlord  in  the  oflBce  of  the  clerk  of  the  Munic- 
ipal Court  of  the  city  of  New  York,  borough  of  The 
Bronx,  first  district,  upon  direction  of  a  verdict  by 
the  court  after  trial  before  a  jury. 

Bernard  S.  Deutsch,  for  appellant. 

Robert  E.  Bergnmn  (Louis  Steckler,  of  counsel),  for 
respondent. 

Wagner,  J.  Holdover  proceedings  were  brought  to 
recover  possession  of  premises  occupied  by  the  tenant 
under  a  written  lease  expiring  April  30,  1920.  The 
premises  were  owned  by  one  Ebling  and  during  the 
continuance  of  the  leasehold  were  sold  to  the  plain- 
tiff herein,  the  actual  conveyance  taking  place  on  April 
10,  1920.  The  lease  contained  a  provision  that  the 
tenant  could  exercise  an  option  of  renewal  for  three 
years  upon  giving  notice  to  the  landlord  by  registered 
mail  addressed  to  the  landlord  at  liis  residence 
between  April  1  and  November  1,  1919.  The  tenant, 
as  appears  by  his  testimony,  did  during  that  time  give 
both  oral  and  written  notice  to  one  Sudbrink,  plain- 
tiff's agent,  that  he  had  exercised  his  option  to  renew 
according  to  the  provisions  of  the  lease  and  upon 
inquiry  as  to  whether  it  was  necessary  to  send  fur- 
ther notice  by  registered  mail  was  informed  that  they 
were  aware  of  his  intention  to  renew  and  that  formal 
notice  by  registered  mail  was  not  necessary.  At  the 
25 


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Appellate  Tenn,  First  Department,  February,  1921.     [Vol.  114. 

conclusion  of  the  trial,  the  learned  justice  directed  a 
verdict  in  plaintiff's  favor  and  we  think  erroneously. 

It  was  admitted  upon  the  trial  that  Sudbrink  was 
Ebling's  agent,  and  the  testimony  discloses  that  such 
agency  was  not  a  limited  one  but  general  so  far  as 
these  premises  were  concerned.  He  had  entire  charge 
of  them,  collected  the  rents,  superintended  them 
during  all  the  time  covered  by  defendant's  lease.  All 
the  checks  were  made  to  his  order  for  payment  of 
rent.  Although  clearly  the  notice  of  an  election  to 
renew  must  be  given  in  strict  accordance  with  the 
requirements  provided  for  in  the  lease,  and  the  tenant 
here  had  failed  in  their  strict  observance,  nevertheless 
the  general  agent  under  the  circumstances  and  the 
power  vested  in  him  by  the  owner  had  the  right  to 
orally  waive,  or  rather  on  behalf  of  his  principal  elect 
not  to  treat  the  tenant's  failure  to  give  the  required 
notice  as  an  indication  that  he  did  not  desire  a  renewal. 
United  States  Realty  S  Imp.  Co.  v.  Swing,  172  N.  Y. 
Supp,  214,  Although  evidence  given  by  tenant  to  the 
effect  that  he  was  told  by  Sudbrink  that  notice  by 
registered  mail  would  not  be  required  and  that  he 
could  have  the  renewal  as  he  requested,  was  denied  by 
the  agent,  we  think  it  presented  a  question  of  fact  for 
the  determination  of  the  jury  and  the  trial  court  was 
without  warrant  in  directing  a  verdict. 

Final  order  reversed  and  new  trial  granted,  with 
thirty  dollars  costs  to  appellant  to  abide  the  event. 

Guy  and  Lehmait,  JJ.,  concur. 

Final  order  reversed  and  new  trial  granted,  with 
thirty  dollars  costs  to  appellant  to  abide  event. 


Habbis  v.  Einhorn.  387 

Misc.]     Appellate  Term,  First  Department,  February,  1921. 


AtaBebt   Habbis,   Respondent,  v.   Willum   Einhobn, 

Appellant. 

(Supreme  Court,  Appellate  Term,  First  Department,  January  Term 
—  Filed  February,  1921.) 

Sales  —  action  for  goods  sold  and  delivered  —  retention  of  partial 
deliyery  —  connterdaim  —  damages. 

While  a  vendee  who  accepts,  retains  and  uses  a  partial 
delivery  of  goods  due  in  a  single  delivery  may  be  held  for  the 
purchase  price  thereof  he  is  also  entitled  to  relief  against  the 
vendor  for  damages  because  of  delay  or  default  in  the  delivery 
of  the  balance  of  the  goods. 

An  oral  contract  for  the  sale  of  luminette  called  for  the 
delivery  of  three  pieces  at  once,  and  twenty-one  pieces  to  be 
shipped  during  the  months  of  October  and  November,  1919, 
upon  plaintiff's  receipt  of  same.  Prior  to  the  date  when  pay- 
ment for  the  three  pieces  fell  due,  the  plaintiff  had  received 
a  number  of  pieces  from  his  consignor  but  none  had  been 
delivered  to  defendant  though  he  made  frequent  requests  there- 
for. Plaintiff's  demand  for  payment  for  the  three  pieces  was 
refused  because  of  his  failure  to  deliver  the  remaining  pieces 
called  for  by  the  contract.  In  an  action  for  goods  sold  and 
delivered  the  defendant  counterclaimed  for  the  increased  value 
of  the  goods  not  delivered  because  in  the  meantime  their  market 
price  had  risen.  Held,  that  whether  defendant  suffered  any 
damages  by  reason  of  plaintiff's  failure  to  deliver  according  to 
the  contract,  was  a  question  which  should  have  been  submitted 
to  the  jury,  and  a  judgment  entered  upon  a  verdict  directed 
in  plaintiff's  favor,  after  the  dismissal  of  the  counterclaim, 
will  be  reversed  and  a  new  trial  ordered. 

Appeal  by  the  defendant  from  a  judgment  of  the 
City  Court  of  the  city  of  New  York,  in  favor  of  the 
plaintiff,  after  dismissal  of  defendant's  counterclaim 
upon  the  direction  of  a  verdict  by  the  court. 

L.  0.  Rothschild,  for  appellant. 

Marks  &  Marks  (Henry  Poarlman,  of  counsel),  for 
respondent. 


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388  Harris  v.  Einhorn. 

Appellate  Term,  First  Department,  February,  1921.     [Vol.  114. 

Wagner,  J.  Admitting  the  plaintiff 's  cause  of 
action  for  goods  sold  and  delivered,  the  defendant 
counterclaimed  for  breach  of  contract  on  the  part  of 
the  plaintiff  in  failing  to  deliver  the  balance  of  the 
merchandise.  It  appeared  by  stipulation  made  at  the 
inception  of  the  trial  that  plaintiff  and  defendant 
entered  into  an  oral  agreement  on  October  6,  1919, 
whereby  plaintiff  agreed  to  sell,  and  defendant  agreed 
to  purchase  three  pieces  of  luminette,  to  be  delivered 
at  once,  and  twenty-one  pieces  to  be  shipped  during 
the  months  of  October  and  November,  upon  plaintiff's 
receipt  of  the  same.  Immediate  delivery  was  made  of 
the  three  mentioned  pieces,  payment  for  which  became 
due  seventy  days  after  delivery,  namely,  December 
16,  1919.  Prior  to  the  last  mentioned  date,  though 
plaintiff  had  received  a  number  of  pieces  from  his 
consignor,  none  had  been  delivered  to  the  defendant, 
though  the  latter  made  frequent  requests,  plaintiff 
making  the  false  explanation  that  he  had  received 
none. 

Upon  the  trial  plaintiff  gave  as  a  reason  for  his 
failure  to  deliver  that  he  feared  defendant's  credit 
and  desired  to  take  no  further  risk. 

On  December  16,  1919,  when  the  payment  for  the 
delivery  of  the  three  pieces  in  suit  fell  due,  payment 
was  demanded,  met  by  defendant's  refusal  to  pay 
because  of  plaintiff's  failure  to  keep  his  engagement 
to  deliver  the  remaining  pieces  provided  for  by  the 
contract.  In  the  meantime  the  market,  defendant 
claimed,  for  this  commodity  had  risen  in  price,  the 
increased  value  thereof  forming  the  foundation  for 
the  counterclaim  interposed. 

It  appears  from  an  examination  of  the  colloquy 
ensuing  between  court  and  counsel  at  the  termination 
of  the  trial,  that  the  theory  upon  which  the  learned 
court  below  dismissed  the  counterclaim  and  directed  a 


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Harris  v.  Einhorn.  389 

Misc.]     Appellate  Term,  First  Department,  February,  1921. 

judgment  in  plaintiff's  favor,  was  that  although  the 
plaintiff  had  broken  his  contract  by  failing  to  make 
deliveries  as  agreed  before  any  breach  by  the  defend- 
ant had  taken  place,  the  defendant  had  not,  prior  to 
December  sixteenth,  elected  to  treat  the  failure  as  a 
breach,  and  that  his  default  on  that  date  was  fatal  to 
any  claim  of  breach  on  plaintiff's  part  by  way  of  coun- 
terclaim. Analyzing  the  logic  of  this  view  it  reduces 
itself  to  the  following  proposition:  The  plaintiff^s 
failure  to  deliver  goods  as  per  contract  was  not  a 
breach,  because  the  defendant  did  not  elect  to  treat  it 
as  a  breach,  but  defendant's  failure  to  pay  for  goods 
already  delivered  was  such  a  breach  as  to  deprive 
defendant  of  his  cause  of  action  which  had  arisen, 
though  plaintiff  had  not  elected  to  treat  it  as  a  breach. 

It  is  undisputed  that  at  the  time  the  def